Mulla Madar Bee vs Tenali Ramakrishnaiah

D.S.R. Varma, J.—This appeal is filed challenging the judgment and decree dated 5-3-2002 passed by the Court of I Additional District Judge, Kurnool in A.S.No. 80/1999.

By the impugned judgment and decree the lower appellate court dismissed the appeal filed by the plaintiff and thereby confirmed the judgment and decree dated 28-4-1999 passed by the Court of Junior Civil Judge, Dhone in O.S.No. 469/1996.

Thus the unsuccessful plaintiff before both the courts below in a suit for permanent injunction, is the appellant herein. Hence, for the sake of convenience, the parties are being referred to as ''the plaintiff" and ''the defendant''.

The brief facts are that the plaintiff filed the suit for permanent injunction restraining the defendants and his men from encroaching into the suit schedule land marked as AGBCDEF or from any interference with her peaceful possession over the suit land. In the plaint it is stated that the plaintiff purchased three acres of land and since the date of purchase, the plaintiff is in possession of the same. It is stated that a part of the land shown as AFG in the plaint plan is left for house plots. It is stated that since the defendant who is having a plot in Sy.No. 676 is trying the encroach into the plaintiff''s AGF land and also proclaiming that he would occupy the land in near future, the plaintiff filed the present suit for permanent injunction.

On the other hand, the defendant denied all the plaint averments and contended that the plaintiff is not in possession of the entire three acres of land purchased by her in Sy.No. 677. He claimed right over the disputed land independently by relying on some revenue records and accordingly sought for dismissal of the suit.

Basing on the material available on record, both the courts below framed appropriate issue and negatived the contention of the plaintiff and thereby dismissed the suit of the plaintiff for permanent injunction. Hence, the second appeal.

From a reading of the impugned judgment of the lower appellate court it is categorically recorded basing on the material available on record, particularly on the admission of the plaintiff that "since the defendant has raised the wall, I filed this suit against him", and also on the report of the Advocate Commissioner in Ex.C-1, that the plaintiff was not in possession and enjoyment of the suit schedule property as on the date of filing of the suit, refused to grant permanent injunction and also observed that the plaintiff suppressed the material facts and approached the court with unclean hands. Further the lower appellate court also categorically recorded that the defendant occupied the land in the northwest corner of the triangular bit of the plaintiff to an extent of 627 sq. yards. However, it was observed that the plaintiff cannot take law into her hands under the guise of permanent injunction and evict the defendant. The lower appellate court also observed that the remedy available to the plaintiff is to file a suit for declaration of title and for recovery of possession, but not seeking relief of bare injunction. At paragraph No. 17 with regard to title, the court below observed as under:

"............ However, the court in a suit for permanent injunction cannot go on to decide the title of the parties. The court may go into the title aspect incidentally as per settled law. In the case on hand, both parties are claiming title to the land shown in blue colour in Ex.C-2, Commissioner''s plan. But I am not going to decide the title of the parties for bare injunction."

From the above extract it is clear that the court below has unequivocally stated that it was not going into the aspect of title in a suit for bare injunction. It is also clear that both the parties are claiming title over the disputed land in their own right and as per the finding of fact recorded by the court below the plaintiff was not in possession over the disputed land as on the date of filing of the suit and in such an event as held by the courts below, it is always desirable for the plaintiff to file a suit for declaration of title and recovery of possession.

From the judgments of the courts below it is clear that all the issues were decided on appreciation of the evidence on record and as they are purely factual in nature and since no substantial question of law is involved, the orders of the courts below do not warrant any interference and the second appeal is liable to be dismissed.

The learned counsel appearing for the appellant in the second appeal apprehended that the findings in the present suit may affect his case, if a separate suit is filed for declaration of title and recovery of possession. This apprehension, in my considered view, in the light of the above extract of the court below, is totally misconceived and merits only rejection.

The Hon''ble Apex Court in Gram Panchayat of Village Naulakha Vs. Ujagar Singh and Others, wherein similar set of facts had arisen, while dealing with the aspect of res judicata, held at paragraph No. 10 as under:

"We may add one other important reason which frequently arises u/s 11 of C.P.C. The earlier suit by the respondent against the Panchayat was only a suit for injunction and not one on title. No question of title was gone into or decided. The said decision cannot, therefore, be binding on the question of title. See in this connection Sajjadanashin Sayed Md. B.E.Edr. (D) By Lrs. Vs. Musa Dadabhai Ummer and Others, where this court, on a detailed consideration of law in India and elsewhere held, that even if, in an earlier suit for injunction, there is an incidental finding on title, the same will not be binding in a later suit or proceeding where title is directly in question, unless it is established that it was "necessary" in the earlier suit to decide the question of title for granting or refusing injunction and that the relief for injunction was founded or based on the finding on title. Even the mere framing of an issue on title may not be sufficient as pointed out in that case."

It would also be useful to have a glance at the decision of the Apex Court in Sajjadanashin Sayed Md. B.E.Edr. (D) By Lrs. Vs. Musa Dadabhai Ummer and Others, which has been referred to by the Apex Court in Ujagar Singh''s case (cited 1 supra). From a reading of this judgment (cited 2 supra), Their Lordships while dealing with the aspect of res judicata had the occasion to discuss about matters ''directly and substantially in issue'' and matters ''collaterally and incidentally in issue'' and held that it depends on facts of the case. The relevant portion at paragraphs 12 and 14 is extracted as under:

It will be noticed that the words used in Section 11 C.P.C. are "directly and substantially in issue". If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res judicata in a subsequent proceeding. Judicial decisions have however held that if a matter was only "collaterally or incidentally" in issue and decided in an earlier proceedings, the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly and substantially in issue.

A collateral or incidental issue is one that is ancillary to a direct and substantive issue; the former is an auxiliary issue and the latter the principal issue. The expression "collaterally or incidentally" in issue implies that there is another matter which is "directly and substantially" in issue (Mulla''s Civil Procedure Code, 15th Edn., P.104).

Their Lordships of the Apex Court had also taken into account the sayings of Mulla at page No. 104 in 15th edition of C.P.C. The relevant portion at paragraph No. 18 of the judgment is extracted as under, for ready reference:

"The question arises as to what is the test for deciding into which category a case falls? One test is that if the issue was "necessary" to be decided for adjudicating on the principal issue and was decided, it would have to be treated as "directly and substantially" in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in latter case. (Mulla, p. 104). One has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue Isher Singh Vs. Sarwan Singh and Others, and Syed Mohd. Salie Labbai (Dead) by L.Rs. and Others Vs. Mohd. Hanifa (Dead) by L. Rs. and Others, ).

Further, Their Lordships in the said decision (cited 2 supra) had also taken into account the principle of caution referred to by Mulla. The said principle at paragraph No. 19 is re-extracted as under for ready reference:

"It is not be assumed that matters in respect of which issues have been framed are all of them directly and substantially in issue. Nor is there any special significance to be attached to the fact that a particular issue is the first in the list of issues. Which of the matters are directly in issue and which collaterally or incidentally, must be determined on the facts of each case. A material test to be applied is whether the court considers the adjudication of the issue material and essential for the decision."

The quintessence of the above decisions of the Apex Court is that the courts in which the subsequent proceedings have been initiated between the same parties, in order to apply the principle of res judicata, have to necessarily examine the nature of the earlier suit in the light of the pleadings of both the parties, issues framed and the judgment delivered, in order to find out whether the issue decided therein is ''direct and substantial'' or ''collateral and incidental" and that if is directly and substantially'' in issue, the subsequent proceedings will be hit by principles by res judicata and on the other hand if the issue decided is only collateral and incidental, principles of res judicata will not apply.

In the present case also, for rejecting permanent injunction, no question of title had been gone into and the court below has also categorically observed that it was not going into the question of title. In such a case, as per the above law laid down by the Apex Court, the plaintiff may not find it difficult to institute a separate suit for declaration of title and recovery of possession and the findings in the earlier suit with regard to possession will not in any way affect her case.

For the foregoing reasons, I do not find any question of law, much less substantial for interference of this court u/s 100 C.P.C. and accordingly dismiss the second appeal with a liberty to file fresh suit for declaration of title and for recovery of possession. No costs.