K. Durairaj vs Ashok Kakri and N.K. Shah

R. Mala, J.—The Second Appeal is filed by the plaintiff against the judgment and decree dated 8.11.2002 in A.S. No. 205 of 1999 on the

file of the Additional District Court (Fast Track Court No. 2), Coimbatore, confirming the judgment and decree dated 29.7.1999 in O.S. No.

1882 of 1992 on the file of the III Additional District Munsif Court, Coimbatore.

The averments in the plaint are as follows:

(a) The plaintiff is the owner of the non-residential building. Apart from the suit property, he also owns other non-residential buildings adjacent to

the suit property, which were let out to various tenants. The plaintiff is residing behind the suit property with his family. The defendants were his

friends and the second defendant took the suit property on lease from the plaintiff on 19.2.1982 as per the unregistered lease agreement and paid

the advance of Rs. 7,500/- for running a non-vegetarian hotel under the name of ""Kabab Corner"". The monthly rent was Rs. 400/-. The first

defendant took the premises bearing Door No. 254-C, D, E, D.B. Road, Coimbatore, in the name of his wife Indu Kakri from the plaintiff, which

is also adjacent building to the suit property. Thus, both the defendants were tenants under the plaintiff. The second defendant was tenant in Door

No. 254-C, D, E, wherein the first defendant was doing business in the name of his wife, just adjacent to the property.

(b) Both the defendants were cordial and intimate and in the year 1984, some misunderstanding arose between the defendants, which ended in the

litigation. So, they were unable to run the business and the second defendant surrendered the possession of the suit property to the plaintiff at the

end of April 1984. Thereafter, the plaintiff let out the property to third parties. The plaintiff issued notice dated 24.5.1984 terminating the tenancy

of the building in Door No. 254-C, D, E, wherein the first defendant was doing business in the name of his wife. On receipt of the notice, the first

defendant has stated that he was a tenant of the suit property and the second defendant was his Manager. The plaintiff has issued suitable reply.

(c) In the meantime, the plaintiff had filed the suit for possession of D. No. 254-C, D and E, against the wife of the first defendant and partners in

O.S. No. 626 of 1984 on the file of the Sub-Court, Coimbatore. The first defendant also filed the suit against the plaintiff in O.S. No. 1486 of

1984 for possession of the suit property alleging that he was the tenant under the plaintiff and he was illegally dispossessed. On 13.3.1990, the suit

in O.S. No. 1486 of 1984 was allowed, stating that the first defendant is entitled to the possession of the property. The plaintiff preferred appeal in

A.S. No. 144 of 1990. The first respondent pleaded that it is a summary suit and u/s 6 of the Specific Relief Act, no appeal is maintainable. So,

the appeal was dismissed. The plaintiff preferred a Civil Revision Petition before this Court with a delay excuse petition and the same was

dismissed.

(d) Now, the present suit is being filed u/s 6(4) of the Specific Relief Act, to decide the title of tenancy regarding the suit property. The first

defendant was not a tenant. So far as the plaintiff is concerned, the second defendant was the tenant. Hence, it has become necessary for the

plaintiff to file the suit for declaration that the second defendant was the tenant in the suit premises under the plaintiff from 19.2.1982 to April 1984

and also to restrain the first defendant from enforcing the decree in O.S. No. 1486 of 1984 by way of permanent injunction and for cancelling the

decree in O.S. No. 1486 of 1984, dated 13.3.1990 on the file of the III Additional District Munsif Court, Coimbatore, and also for other relief.

The plaintiff prayed for a decree.

The gist and essence of the written statement filed by the first defendant are as follows:

The second defendant is only an employee under the first defendant. The second defendant colluded and trespassed into the demised property and

took illegal possession. In O.S. No. 1486 of 1984, it was finally adjudicated that the first defendant was forcibly thrown out of the demised

premises and that he is entitled to possession as a tenant. So, the decree of the trial Court in O.S. No. 1486 of 1984 has become final and

enforceable. The first defendant admits title of the plaintiff and states that he is only a tenant under the plaintiff. There is no denial of title and the

present suit does not satisfy the ingredients of Section 6(4) of the Specific Relief Act. The suit did not relate to the title. But the case of the first

defendant is that he was forcibly evicted, was accepted. The decision in O.S. No. 1486 of 1984 confirms the right of the first defendant as a tenant

and proves that the plaintiff is the owner. So, the present suit is superfluous. The plaintiff is trying to create records by colluding with the second

defendant and hence, he prayed for dismissal of the suit.

The trial Court, after considering the averments both in the plaint and in the written statement, framed five issues and considering the evidence of

P.Ws.1 and 2, D.Ws.1 and 2, Exs.A-1 to A-12 and Exs.B-1 to B-10, dismissed the suit. Against that, the plaintiff preferred appeal and the first

appellate Court, after hearing the arguments of both the counsel, concurred with the findings of the trial Court and dismissed the appeal. Against

that, the present Second Appeal has been preferred by the plaintiff.

At the time of admission of the Second Appeal, the following substantial questions of law were framed for consideration:

(i) Whether the Courts below are correct in coming to the conclusion that the plaintiff had not established his case that the 2nd defendant was the

tenant under him after perusing the document Ex.A.2, the rental agreement between the plaintiff and the 2nd defendant and Ex.A.2, the receipt

issued by the plaintiff for advance amount paid by the 2nd defendant with an endorsement of taking back the advance money?

(ii) Whether the Courts below are correct in shifting the burden of proof with reference to the tenancy of the first defendant on the shoulders of the

plaintiff when the first defendant claims that he is the tenant of the suit shop?

(iii) Whether the Courts below are correct in holding that the first defendant is the tenant of the suit house, on the other hand, the first defendant

establish that he is the Proprietor of the suit shop? and

(iv) Whether the Courts below are correct in holding that judgment and decree in O.S. No. 1486 of 1984 becomes final when the validity of the

judgment and decree was not tested by the appellate or revisional authorities?

Substantial questions of law:

The appellant as plaintiff filed the suit for declaration that the second defendant is a tenant under him from 19.2.1982 to April 1984 and also for

permanent injunction not to enforce the decree in O.S. No. 1486 of 1984 and also for cancellation of the decree passed in O.S. No. 1486 of

1984, dated 13.3.1990, on the file of the III Additional District Munsif Court, Coimbatore, stating that the first defendant is not a tenant under him

and even though the second defendant surrendered the possession who was a tenant, the first defendant filed the suit u/s 6 of the Specific Relief

Act and obtained a decree. Against that, the plaintiff preferred appeal and the appeal was dismissed as not maintainable. The Civil Revision

Petition filed along with a petition to condone the delay in preferring the Civil Revision Petition, was also dismissed and hence, the plaintiff has

come forward with the present suit.

The first respondent as first defendant raised a contention that the suit itself is not maintainable. He alone was a tenant under the appellant-

plaintiff and the judgment and decree passed in O.S. No. 1486 of 1984 is final and enforceable in law. To avoid handing over of the possession,

he has come forward with the present suit. Hence, he prayed for dismissal of the suit.

The trial Court framed necessary issues and considering the oral and documentary evidence, dismissed the suit stating that the suit is not

maintainable. Against that, the plaintiff preferred appeal, which was also dismissed by the first appellate Court. Against that, the present Second

Appeal has been preferred by the plaintiff.

Learned Senior Counsel appearing for the appellant-plaintiff would contend that the suit was filed by the plaintiff for declaration that the second

defendant was the tenant under him and he has not contested the suit. The trial Court has not considered this aspect. The suit has been filed only

u/s 6(4) of the Specific Relief Act. He further urged that a civil suit u/s 6(4) of the Specific Relief Act, is not barred. He relied upon the decision of

a Division Bench of this Court reported in 1997 (1) L.W. 76 (Marimuthu, S. v. G. Kumaraswamy and Ors.), a decision of this Court reported in

Vol.80 L.W. 76 (Gopalakrishna Pillai v. Venkatesam Pillai) and a decision of the Gujarat High Court reported in Mohammad Hussain Suleman

Shaikh and Another Vs. Batukbhai Vaijibhai and Others, and argued that even in case where the plaintiff is dis-satisfied with a decree, u/s 6(4) of

the Specific Relief Act, he can immediately initiate a suit for declaration of his title and can claim the available consequential relief and the suit itself

is maintainable.

Per contra, learned Counsel for the respondents-defendants would contend that since the first respondent-first defendant is a tenant under the

plaintiff, the second respondent-second defendant was only the Manager under him and he was forcibly evicted from running the non-vegetarian

hotel, i.e. from the suit property and hence, he filed the suit in O.S. No. 1486 of 1984 u/s 6 of the Specific Relief Act, which was allowed, but

instead of handing over the possession to the first respondent-first defendant, he preferred appeal and the appeal was dismissed as not

maintainable. Then, the appellant-plaintiff filed Civil Revision Petition along with a condone delay application u/s 5 of the Limitation Act. The

condone delay application has also been dismissed and so, the judgment and decree passed in O.S. No. 1486 of 1984 are final and since he is

entitled for recovery of possession, to avoid the possession, the appellant-plaintiff has come forward with the present suit and so, the suit itself is

not maintainable. The present suit is hit by res-judicata. Learned Counsel for the respondents relied upon the decisions of the Supreme Court

reported in Narayana Prabhu Venkateswara Prabhu Vs. Narayana Prabhu Krishna Prabhu (Dead) by L. Rs., , Vijayabai and Others Vs. Shriram

Tukaram and Others, , S.R. Ejaz Vs. The Tamil Nadu Handloom Weavers Co-operative Society Ltd., and a decision of this Court reported in

Marimuthu Vs. Savarimuthu and Others, and argued that under Articles 21 and 300A of the Constitution of India, only dispossession in due course

of law can be accorded legitimacy by the Courts and forcible dispossession by influential persons and musclemen cannot be condoned. Learned

Counsel for the respondents prayed for dismissal of the Second Appeal.

The admitted fact is that the suit property absolutely belongs to the appellant-plaintiff. The property was leased out for running ""Kabab Corner

as non-vegetarian hotel. Ex.A-1 is an unregistered lease agreement. As per Ex.A-2 = Ex.B-1, Rs. 7,500/- has been paid and it is the receipt. The

case of the appellant-plaintiff is that Ex.A-1 lease agreement has been entered by the second respondent-second defendant with the appellant-

plaintiff and the second respondent-second defendant is the tenant. The second respondent-second defendant handed over the property to the

appellant-plaintiff after the tenancy period was over. But the first respondent-first defendant filed the suit in O.S. No. 1486 of 1984 u/s 6 of the

Specific Relief Act and obtained a decree. The appellant-plaintiff has come forward with the present suit u/s 6(4) of the Specific Relief Act. At this

juncture, the main argument advanced by the learned Counsel for the respondents-defendants is that the present suit itself is not maintainable.

Moreover, the present suit has been filed u/s 6(4) of the Specific Relief Act to declare that the second respondent-second defendant was the

tenant under him and also for cancellation of the decree in O.S. No. 1486 of 1984 and also for permanent injunction not to enforce the decree in

O.S. No. 1486 of 1984. In such circumstances, the trial Court has dismissed the present suit and the first appellate Court concurred with the

findings of the trial Court.

At this juncture, it is appropriate to state that the said Ex.A-1 lease agreement has not been produced before Court while suit in O.S. No.

1486 of 1984 was contested, even though it was with the appellant-plaintiff. Exs.B-3, B-4, B-5 and B-6 clearly prove that the second

respondent-second defendant was only the Manager of ""Kabab Corner"", but the Proprietor is the first respondent-first defendant and some of

those documents came into existence prior to the earlier proceedings. The Second respondent-second defendant as a Manager of ""Kabab Corner

was prosecuted in the criminal proceedings, which was even on 30.7.1982, which is evidenced by Exs.B-5 and B-6. The Registration Certificate

also proves that the first respondent-first defendant was the Proprietor and the second respondent-second defendant was only the Manager.

Considering these documents, for and on behalf of the Proprietor of ""Kabab Corner"", the second respondent-second defendant has signed Ex.A-

Moreover, Ex.A-1 is an unregistered document. It is for more than 11 months.

It is also pertinent to note that the second respondent-second defendant has not participated in all the proceedings before the trial Court and

the first appellate Court. There was difference of opinion between the first and second respondents and hence, the second respondent-second

defendant will not support the case of the first respondent-first defendant. In such circumstances, it is the duty of the appellant-plaintiff to prove that

the second respondent-second defendant was a tenant under him. All these facts have been considered by Court in Ex.A-5, which is the copy of

the judgment in O.S. No. 1486 of 1984. The documents now filed by the respondents-defendants have already been filed in the previous suit in

O.S. No. 1486 of 1984 and only on that basis, the judgment in O.S. No. 1486 of 1984 has been pronounced, as seen from Ex.A-5. In such

circumstances, I do not find any infirmity in the judgment of the trial Court and the first appellate Court has also come to the conclusion that the first

respondent-first defendant alone was the tenant and the second respondent-second defendant was only the Manager.

It is appropriate to consider Section 44 of the Indian Evidence Act, since the suit has been filed to declare that the second respondent-second

defendant was a tenant under the appellant-plaintiff and also for cancellation of the decree passed in O.S. No. 1486 of 1984. Section 44 of the

Indian Evidence Act reads as follows:

Section 44: Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved.

Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under Sections 40, 41 or 42 and which has

been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.

But there is no averment in the plaint stating that the judgment in O.S. No. 1486 of 1984 has been obtained by fraud or collusion or due to

incompetency of the Court. It is pertinent to note that as per Order 6 Rule 4 C.P.C., if there is any fraud or collusion, it is the duty of the plaintiff to

specifically plead the same. But in the present case, nothing has been averred in the plaint.

The appellant-plaintiff has stated in the plaint that after the decree has been obtained as seen from Ex.A-5 in O.S. No. 1486 of 1984, the

plaintiff preferred A.S. No. 114 of 1990. But as per Section 6(3) of the Specific Relief Act, no appeal shall lie and so, the appeal has been

dismissed as not maintainable, as seen from Ex.A-7. As against the same, the plaintiff preferred a Civil Revision Petition before this Court, with a

petition to condone the delay and the petition to condone the delay was also dismissed by this Court. Hence, the appellant-plaintiff has come

forward with the present suit for cancellation of the decree in O.S. No. 1486 of 1984, by invoking the provisions of Section 6(4) of the Specific

Relief Act.

Section 6 of the Specific Relief Act reads as follows:

Section 6: Suit by person dispossessed of immovable property.--(1) If any person is dispossessed without his consent of immovable property

otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title

that may be set up in such suit.

(2) No suit under this section shall be brought--

(a) after the expiry of six months from the date of dispossession; or

(b) against the Government.

(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be

allowed.

(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.

Learned Senior Counsel for the appellant-plaintiff relied on the following decisions, relevant portions of which are quoted hereunder and he

argued that the suit u/s 6(4) of the Specific Relief Act is maintainable:

(i) 1997 (1) L.W. 76 (cited supra):

12.A. We must also observe that simply because after meeting failure in the summary suit u/s 6 of the Specific Relief Act, the plaintiff comes

forward to file a title suit as the present one, he cannot be blamed that he is coming to Court with unclean hands, since only seeks the relief, which

is provided under law. Section 6(4) of the Specific Relief Act itself says thus:

Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.

Further, it must also be noted that while he succeeded initially in O.S. No. 5884 of 1981 and got dismissal of the said suit against him, he failed

only in the subsequent C.R.P. No. 1382 of 1985. But, even in the order dated 5.7.1991 in the said C.R.P., the 1st respondent herein could not

point out any strictures as such having been passed against the present plaintiff by the learned Judge of this Court, who passed the said order.

Further, one other observation of the learned trial Judge, particularly the latter part of it is also, according to us, not proper. The said observation

runs as follows:

With eyes open, the trespass also continued for years together, and till the order was passed in C.R.P. No. 1382 of 1995, he continued his

unlawful possession, and only after the order was passed in the said C.R.P., he thought of filing a suit to declare his title with consequential reliefs.

It is obvious that only after the abovesaid order in the C.R.P., the plaintiff would normally get cause of action for filing the present title suit. So, the

plaintiff filing a suit only after the order in the C.R.P. cannot be put against him. Further only because there was some discrepancy regarding the

extent between what is contained in the schedule to the abovesaid sale deed and the actual extent conveyed to him under the said sale deed, the

confusion arose, which led to the decree that was passed in the C.R.P. u/s 6 of the Specific Relief Act and the said confusion has also now been

made clear by the learned trial Judge himself in the present suit. Therefore also, it cannot be said that there is any real justification for the remarks

passed by the learned trial Judge in his judgment against the conduct of the plaintiff.

(ii) Vol. 80 L.W. 76 (cited supra):

Rejecting the contention, Section 9 of the Specific Relief Act by itself imposes no specific bar to a suit by the defeated party in possession before

surrendering possession. There is nothing in the language of the section to take away the remedies available to a person in possession of property

as of right, and entitled to remain in possession. Of course, it goes without saying that then there is a valid decree for possession against a plaintiff,

he will not be granted an injunction from executing that decree. If the legality of the decree is not questioned, a decree holder cannot be restrained

from executing the decree as between the parties to the decree.

The object of the title suit is in substance to have the summary order for possession set aside on the basis of title and right to present possession. In

such a suit if the plaintiff in possession has claimed declaration of his title, it may properly be followed by the consequential relief of injunction.

(iii) Mohammad Hussain Suleman Shaikh and Another Vs. Batukbhai Vaijibhai and Others, :

In a case where the plaintiff is dissatisfied with a decree under S.6 he can immediately institute a suit for declaration of his title and can claim the

available consequential relief. That is, if he is in possession of the suit property, all that he can pray for is that status quo be maintained and an

injunction be issued restraining the defendant from dispossessing him. However, while granting interim injunction the Court is required to consider

all the relevant facts i.e. prima facie case, balance of convenience and irreparable injury to either party.

It is appropriate to consider the prayer in the plaint, which reads as follows:

The plaintiff therefore prays that this Hon''ble Court may be pleased to pass a decree against the defendants:

a) Declaring that the 2nd defendant herein was the tenant of the suit premises under the plaintiff from 19.2.82 to April 1984;

b) Restraining the 1st defendant from enforcing the decree in O.S. No. 1486 of 84 by a decree of permanent injunction;

c) Cancelling the decree in O.S. No. 1486 of 1984 dt. 13.3.1990 on the file of the 3rd Additional District Munsif Court, Coimbatore.

d) awarding the costs of the suit and to pass such and other suitable orders as the court deems fit and proper in the circumstances of the case.

As per Section 6(4) of the Specific Relief Act, the appellant-plaintiff is entitled to file a suit for declaration of title and recovery of possession.

But the present suit is not for declaration of title to the property and recovery of possession. It has been filed for a declaration that the second

respondent-second defendant was the tenant of the suit premises under the plaintiff and to restrain the first defendant from enforcing the decree in

O.S. No. 1486 of 84 by way of a decree of permanent injunction and for cancelling the decree in O.S. No. 1486 of 1984. At this juncture, it is

appropriate to consider the decision relied upon by the learned Counsel for the respondents reported in 1999 (1) M.L.J. 480 : Marimuthu Vs.

Savarimuthu and Others, , wherein, it has been held as follows:

In this case, plaintiffs does not seek relief for themselves and what they claim is only a relief to declare that defendant is a member of back-ward

community and revenue authorities should not issue community certificate to the petitioner that he belongs to scheduled caste. Plaintiffs did not

claim right for themselves, they seek only declaration for defendant. In view of the decision of the Honourable Supreme Court and also due to the

fact that plaintiffs are not claiming relief for themselves, but only claiming relief for defendant, such a suit is not maintainable and the same is liable to

be rejected. In a suit, relief should be claimed for plaintiff showing cause of action. For granting relief to defendant, there cannot be any cause of

action. The suit is misconceived and the plaint is struck of from the file.

So, the appellant-plaintiff cannot claim right for declaration of title in respect of the second respondent-second defendant, but his relief is only

to declare that the second defendant was the tenant under him and for cancellation of the decree in O.S. No. 1486 of 1984. So, the present suit

itself is not maintainable.

Section 6 of the Specific Relief Act does not bar a person from instituting a suit to establish his title to immovable property and to recover the

possession of the same. Section 6 does not bar any person to bring a regular suit founded upon his title in respect of the immovable property and

to recover possession thereof, even though a suit instituted under Sub-section (1) of Section 6 of the Specific Relief Act has been decreed against

him. A regular suit for title and recovery of possession is maintainable in view of the language of Sub-section (4) of Section 6 of the Specific Relief

Act and the Legislature did not intend to give the proceeding u/s 6(1) of the Specific Relief Act in character of finality. The only point, which arises

for determining in such a suit, is whether the plaintiff was in possession within six months of his dispossession. The defeated party can bring a suit

for declaration of his title and for recovery of possession and it is his duty in the subsequent suit to prove his title. If the plaintiff in the subsequent

suit is in possession, that is, the decree passed in the earlier suit not yet having been executed against him, he can pray for maintenance of ''status

quo'' and the Court in the subsequent suit can pass an order restraining the defendants of the subsequent suit from disturbing the possession of the

plaintiff in the said such suit.

Learned Counsel for the respondents also relied upon the decision of the Supreme Court reported in Vijayabai and Others Vs. Shriram

Tukaram and Others, , wherein it has been held as follows:

Normally this Court would not interfere with any such finding of fact recorded but where the conclusions are arrived at by misconstruing the

provisions of an Act and without appreciating the principle of estoppel, including adjudication of such right in early proceeding under the same Act

between the same party, this Court would not hesitate to reconsider such adjudication of facts. The facts are very clear in the present case. The

question whether Respondent 1 was a tenant of the appellants of the suit land came up for consideration under this very Act and the Tahsildar in a

proceeding initiated u/s 8(3) passed an order deleting the name of the respondent as tenant. The question whether Respondent 1 was a tenant of

the appellants or not was directly in issue in this proceeding which was finally adjudicated upon by the competent authority, holding against the

respondent. Section 49B refers to transfer of possession and ownership of lands to a certain dispossessed tenant. This section is applicable only

where a tenant referred to in Section 46 or 49A was in possession of the land on the appointed day but was dispossessed before the relevant date.

Thus before a power could be exercised under it there has to be a tenant of the suit land, who is dispossessed on the relevant date. But this fact

was no more res integra between the appellants and Respondent 1 on the date suo motu notice was issued by the Tahsildar. As aforesaid, dispute,

if any, regarding tenancy between Respondent 1 and the appellants of the suit land stood concluded in the proceeding u/s 8. The said order passed

u/s 8 is appealable but no appeal was preferred. Thus, so far the appellants and the respondent are concerned, inter se, between them as they

were parties therein, this issue became final. In other words, on the date when the Tahsildar exercised his suo motu power of initiating proceeding

u/s 49-B, there was no material on the record of the Tahsildar to proceed under it, the only record of an entry of 1958-59 stood erased when the

name of Respondent 1 was deleted by the competent authority under this very Act.

Learned Counsel for the respondents also relied upon the decision of the Supreme Court reported in Narayana Prabhu Venkateswara Prabhu

Vs. Narayana Prabhu Krishna Prabhu (Dead) by L. Rs., , wherein it was held as follows:

The expression ""former suit"" according to explanation I of Section 11, Civil Procedure Code, makes it clear that, if a decision is given before

the institution of the proceeding which is sought to be barred by res judicata, and that decision is allowed to become final or becomes final by

operation of law, a bar of res judicata would emerge. This, as learned Counsel for the respondents rightly submits, follows from the decision of this

Court in Lonankutty''s case ( Lonankutty Vs. Thomman and Another, ).

We think that the submission made by the learned Counsel for the respondents is sound. In a partition suit each party claiming that the property

is joint, asserts a right and litigates under a title which is common to others who make identical claims. If that very issue is litigated in another suit

and decided we do not see why the others making the same claim cannot be held to be claiming a right ""in common for themselves and others.

Each of them can be deemed, by reason of explanation VI, to represent all those the nature of whose claims and interests are common or identical.

If we were to hold otherwise, it would necessarily mean that there would be two inconsistent decrees. One of the tests in deciding whether the

doctrine of res judicata applies to a particular case or not is to determine whether two inconsistent decrees will come into existence if it is not

applied. We think this will be the case here.

Relying upon the decision reported in Narayana Prabhu Venkateswara Prabhu Vs. Narayana Prabhu Krishna Prabhu (Dead) by L. Rs., ,

learned Counsel for the respondents-defendants argued that the suit in O.S. No. 1486 of 1984 has been already decided and so, it acts as ""res

judicata"" and since in that suit, it was decided that the first respondent-first defendant was a tenant and then only, a decree for possession has been

granted u/s 6 of the Specific Relief Act, and so, the present suit to declare that the second respondent-second defendant was the tenant, is

squarely barred by the principle of ""res judicata"".

If a question as to the date of dispossession arises in a suit, for instance with reference to limitation, the decision on that question in a previous

suit brought u/s 6 operates as ""res judicata"". When a plea of ""jus tertii"" is set up by the defendants, the result of a previous litigation between the

plaintiff and the alleged real owner operates as ""res judicata"", although the defendants are not persons claiming under that alleged real owner. If in a

suit u/s 6, the Court gives a decision on questions of title, the decision does not operate as ""res judicata"" in a subsequent suit based upon title. This

is because the determination of questions relating to title is not essential for the proper disposal of a suit u/s 6. A decision, however, as to

possession operates as ""res judicata"" in a subsequent suit for possession and declaration of title. When a decree is made u/s 6 for possession of

land together with the standing crop, but the defendant carries away the crop before delivering possession, the plaintiff can bring a suit for the price

of the crop.

The fact as to who was the tenant under the suit property, has already been decided in O.S. No. 1486 of 1984 and now the appellant-plaintiff

is not entitled to canvass the same point. So, it is hit by the principle of ""res judicata"", as per the decision of the Supreme Court reported in

Narayana Prabhu Venkateswara Prabhu Vs. Narayana Prabhu Krishna Prabhu (Dead) by L. Rs., .

Moreover, as per the decision of this Court reported in Marimuthu Vs. Savarimuthu and Others, , the appellant-plaintiff has not sought for a

decree to declare his title to the suit property and for recovery of possession, but the relief is in respect of the second respondent-second

defendant. In such circumstances, the present suit filed u/s 6(4) of the Specific Relief Act is not maintainable.

Even though the learned Senior Counsel for the appellant-plaintiff relied upon the decisions (cited supra) that the present suit is maintainable, as

already stated, as per the prayer in the plaint, the title is not disputed and in previous suit in O.S. No. 1486 of 1984, the first respondent-first

defendant has admitted the ownership of the property and since he was the tenant, he was illegally dispossessed and hence, the first respondent-

first defendant filed the suit in O.S. No. 1486 of 1984 u/s 6 of the Specific Relief Act for recovery of possession and in that suit, all the issues have

been decided by the Court, which came to the conclusion that the first respondent-first defendant was the tenant and he was illegally dispossessed

and a decree has also been granted. In such circumstances, the present suit itself is not maintainable.

Since O.S. No. 1486 of 1984 has been decreed, no appeal is maintainable as per Section 6(3) of the Specific Relief Act. So, the appeal filed

by the appellant-plaintiff was dismissed and he came forward with the present suit for cancellation of the decree passed in O.S. No. 1486 of 1984

and also not to enforce the decree in O.S. No. 1486 of 1984. As per Section 44 of the Indian Evidence Act, the appellant-plaintiff is not entitled

to file such a suit. Hence, the present suit itself is not maintainable.

Further, it is appropriate to consider the decision of the Supreme Court reported in S.R. Ejaz Vs. The Tamil Nadu Handloom Weavers Co-

operative Society Ltd., relied on by the learned Counsel for the respondent, wherein, it has been held as follows:

From the facts narrated above, it is apparent that pending suit filed by the respondent for evicting the appellant, the respondent took forcible

possession of the tenanted premises, for that purpose the appellant had lodged criminal complaint on the same day and as no action was taken, he

had informed various authorities immediately. Despite the representation made to the higher authorities as the police had not taken any action, the

appellant preferred writ petition before the High Court and the High Court directed CB/CID to investigate the case. Thereafter, the charge-sheet

was submitted; the Government granted sanction; however, for the reasons best known to it, the Government withdrew the criminal proceedings.

This would clearly establish that the appellant was in possession of the premises and pending suit, he was forcibly dispossessed. Hence, in such

circumstances if matter is remanded for reconsideration after a lapse of 15 years, the whole purpose of summary suit u/s 6 of the Act for taking

possession would be frustrated. The facts were eloquent and no further evidence was necessary nor was anything required to be reappreciated. It

is to be stated that admittedly there is no document to indicate that the appellant willingly handed over the possession of the suit premises. If the

appellant was prepared to hand over the possession of the suit premises willingly a consent decree would have been obtained in a pending suit

which was filed in 1978. In any case, there was no necessity of taking possession by use of force in presence of the police. If the appellant had

willingly handed over possession, he would not have immediately lodged the criminal complaint and made representation to the higher authorities

for taking action nor would he have filed a writ petition for appropriate directions. Hence, this contention does not deserve to be accepted by any

process of reasoning.

In our view, if such actions by the mighty or powerful are condoned in a democratic country, nobody would be safe nor can the citizens protect

their properties. Law frowns upon such conduct. The court accords legitimacy and legality only to possession taken in due course of law. If such

actions are condoned, the fundamental rights guaranteed under the Constitution of India or the legal rights would be given a go-by either by the

authority or by rich and influential persons or by musclemen. Law of jungle will prevail and ""might would be right"" instead of ""right being might"".

This Court in State of Uttar Pradesh and Others Vs. Maharaja Dharmander Prasad Singh and Others, dealt with the provisions of the Transfer of

Property Act and observed that a lessor, with the best of title, has no right to resume possession extrajudicially by use of force, from a lessee, even

after the expiry of earlier termination of the lease by forfeiture or otherwise. Under law, the possession of a lessee, even after the expiry or its

earlier termination is juridical possession and forcible dispossession is prohibited. The Court also held that there is no question of the Government

withdrawing or appropriating to it an extrajudicial right of re-entry and the possession of the property can be resumed by the Government only in a

manner known to or recognized by law.

As per Articles 21 and 300A of the Constitution of India, a citizen has right for protection of property and only dispossession in due course of

law can be accorded legitimacy by the Courts and forcible dispossession by influential persons and musclemen cannot be condoned.

Since the appellant-plaintiff has lost his right in the earlier suit in O.S. No. 1486 of 1984, now the appellant has commenced the second round

of legal battle against the first respondent-first defendant, instead of handing over the possession to the first respondent-first defendant. Hence, I

am of the view that the present suit itself is not maintainable.

The substantial questions of law are answered in the above terms. In view of the answer given to the substantial questions of law, it is seen that

the trial Court and the first appellate Court have come to the correct conclusion and u/s 6(4) of the Specific Relief Act, the present suit itself is not

maintainable. The appellant-plaintiff is not entitled to any relief sought for in the plaint. The judgment and decree passed by both the Courts below

are liable to be confirmed.

The Second Appeal is dismissed, with costs throughout. The judgment and decree of both the Courts below are confirmed. C.M.P. is closed.