Sivathanu (deceased) and Another vs Kaliammal (died) and Others

V. Ratnam, J.—This second appeal, at the instance of the defendant in O.S. No. 824 of 1974, Principal District Munsif''s Court, Nagarcoil,

has been entertained on the following substaintial question of law:

Whether the suit is barred by res judicata by reason of the judgment in O.S. No. 120 of 1952 on the file of the Additional District Munsif''s Court,

Nagarcoil?"" O.S. No. 120 of 1969, on the file of the Additional District Munsif''s Court, Nagarcoil, was instituted by the respondents in this

second appeal and by the predecessors-in-title of some of them (one daughter and the descendants of two other daughters of one Thanuvan

Arumugham) against the appellant and another Subramonian for a declaration of their title to and possession of the suit property, for a declaration

that the defendants in that suit had neither title to nor possession of the suit property and for a permanent injunction restraining the appellant and

Subramoniam from entering upon the suit property bearing survey No. 4140 in Theroor village. Their case was that that property belonged to

Thanuvan Arumugham, that he was in possession till his death and thereafter on his death, his children, namely, Kaliamma Marayakutti, Achiamma,

Kumaravel and Shanmugham inherited the same and they effected a partition on 28-4-1096 M. E. Their further case was that the two sons of

Thanuvan Arumugham nemely Kumaravel and Shanmugham died unmarried and their share also devolved upon Kaliamma, Marayakutti and

Achiamma, in respect of which a further division on 24-11 1112 M.E. was effected. Thus, they claimed that as a result of the deeds of partition of

28-4-1096 and 24-11-1112 M E. they became entitled to their respective shares in that property and that the defendants in O.S. No. 120 of

1962, namely, the appellant and another Subramonian were wrongfully asserting title to that property and also attempting to trespass upon the

property on the strength of a sale deed executed by Subramonian in favour of Sivathanu, the appellant in this second appeal.

That suit was resisted by the appellant and Subramonian on the ground that the subject-matter of the suit did not belong to Thanuvan

Arumugham, that the partition deeds, dated 28-4-1096 and 24-11-1112 M. E. did not take in the disputed property and further that the appellant

and Subramonian were in possession of the different extents of the disputed property in their own right.

On these rival contentions, the learned Additional District Munsif, Nagarcoil, framed the necessary issues on a consideration of the oral as well

as the documentary evidence, found that the claim of the plaintiffs that the property belonged to Thanuvan Arumugham was not made out, that the

partition deed dated 28-41096 and 24-11-1112 M. E. did not take in the disputed property, but referred to another survey No. 4154 measuring

3 acres 24 cents, and, therefore, the plaintiffs had not established their title. The plea raised by the plaintiffs that in the partition deeds relied upon in

support of their title, the survey number had been wrongly mentioned as 4154 instead of 4140, was negatived and the disputed property was held

not to have been dealt with in the partition deeds dated 28-41096 and 24-11-1112 M. E. Since the plaintiffs had relied upon only the deeds of

partition to establish their title and did not produce any other document to show that the property belonged to their father Thanuvan Arumugham,

the plaintiffs were held not to have established their title to the suit property. Regarding possession, it was found by the learned Additional District

Munsif that the plaintiffs had not established possession of the disputed property. After recording findings on the other issues as well. ultimately, the

learned Additional District Munsif found that plaintiffs were not entitled to any of the reliefs. The suit was, therefore, dismissed.

Aggrieved by this, the plaintiffs in O.S. No. 120 of 1962, Additional District Munsif''s Court, Nagarcoil, preferred an appeal in A.S. No. 96 of

1964. Sub-Court, Nagarcoil. In the lower appellate Court, the plaintiff produced certain documents as additional evidence for which purpose they

filed I.A. Nos. 137 and 139 of 1964. Holding that the plaintiffs should be given an opportunity to adduce additional evidence and that they should

also be permitted to put forward their case with reference to the acquisition of ownership in respect of survey No. 4140, the lower appellate Court

remitted the matter to the trial Court, alter giving an opportunity to the plaintiffs to localise the disputed property and also to file certain documents

as additional evidence with liberty to secure an amendment of the plaint and the filing of an additional written statement and also the raising of other

issues to be decided after adducing further evidence. This remit order was taken exception to by the defendants in O.S. No. 120 of 1962 in

C.M.A. No. 4 of 1965, and on 30th November, 1967, the remit order was set aside as unsustainable and the lower appellate Court was directed

to consider the appeal afresh on its merits with reference to the case of the parties as set out already and the evidence adduced by them in support

of their respective cases. Thereafter before the appeal could be dealt with by the lower appellate Court, the plaintiffs filed 1.A.Nos. 117 and 126

of 1968 for reception of some more documents as additional evidence and also praying for an amendment of the plaint, by which they wanted to

raise a plea that the plaintiffs in O.S. No. 120 of 1962 became the owners of the property by virtue of an othi not having been redeemed within the

time permitted by law. While considering the appeal the lower appellate Court received the documents tendered in I.A. No. 117 of 1968, as

additional evidence overruling the objections raised in this regard by the defendants in O.S. No. 120 of 1962. In so far as the application for an

amendment of the plaint in I.A. No. 126 of 1968 was concerned, the lower appellate Court was of the view that the plaintiffs were attempting to

set up a new case, though they were fully aware of the same even in 1964, and cannot, therefore, be allowed to seek an amendment of the plaint

to put forth such a case. On the merits of the claim the learned Subordinate Judge found that the plaintiffs had not proved their title and possession

in respect of the suit property and affirmed the dismissal of the suit. Against this, the plaintiffs preferred S.A. No. 905 of 1969 before this Court

and by judgment, dated 2nd December, 1971, this Court upheld the conclusion of the Courts below to the effect that the plaintiffs have not

established their title to and possession of the suit property. Dealing with the objection of the application for amendment filed by the plaintiffs in I.A.

No. 126 of 1980 this Court held that the rejection of the application for an amendment of the plaint by the Court below was quite justified on the

facts and in the circumstances of the case. In that view, S.A. No. 905 of 1969 was dismissed.

Thereafter, on 7th October, 1974, the respondents in this second appeal, instituted O.S. No. 828 of 1974, Principal District Munsif''s Court,

Nagarcoil, praying for the relief of declaration that the othi rights in their favour had matured into an absolute title and for possession and for an

injunction restraining the appellant in this second appeal from trespassing into the suit property and disturbing their possession. In the plaint, the

respondents stated that Thanuvan Arumugham had an othi right as per Vellola Othi dated 25-12-1028 M. E. and that he was in possession. It was

also the case of the respondents that they were the lineal descendants of Thanuvan Arumugham and that they were in possession of the property

and as the othi was barred by limitation they had become the full owners of the property. Reference was made in the course of the plaint to the

institution of O.S. No. 120 of 1962, Additional District Munsif''s Court, Nagarcoil and the ultimate decision in S.A. No. 905 of 1969. But, it was

stated that at the time when those proceedings were taken, the respondents were unaware that they were in possession under the othi right and that

even the attempt made by them to amend the plaint was not countenanced and the othi right was not allowed to be put forward and, therefore, any

adjudication in O.S. No. 120 of 1962 will not operate as res judicata. The respondents also stated that as a result of the othi right having matured

into absolute title by limitation and continuous possession, they were entitled to get a declaration and the other reliefs prayed for by them in the suit.

In the written statement filed by the appellant in this second appeal an objection was raised that the title to and possession of the disputed

property put forth by the respondents had already been adjudicated upon and negatived and that a second suit will not lie, as it would be barred by

res judicata on account of the decision in O.S. No. 120 of 1962 besides Order 2, Rule 2, Civil Procedure Code. The mortgage right in favour of

the father of Thanuvan Arumugham, namely, Varavan Thanumaran was disputed and his possession was also challenged. The appellant claimed

that his predecessor-in-title was entitled to the pro-party, that he had purchased the same and was also in possession and that the interference of

his possession by the respondents led to the lodging of a complaint before the police in consequence of which the respondents were also convicted

after finding out that the possession of the disputed property was with the appellant. The conviction was also upheld, according to the appellant, on

appeal and, therefore, the appellant had not only title to the disputed property but was also in possession of the same. Ultimately, the appellant

prayed for the dismissal of the suit.

The learned Principal District Munsif, Nagarcoil, on a consideration of the oral as well as the documentary evidence found that the suit would be

barred by res judicata as a result of the prior adjudication in O.S. No. 120 of 1962, Additional District Munsif''s Court, Nagarcoil. and also Order

2, Rule 2 of the Civil Procedure Code. It was also found that Thanuvan Arumugham and the respondents were not in possession of the disputed

property, though the respondents were the heirs of Thanuvan Arumugham. The title put forth by the respondents to the disputed property owing to

non-redemption of the mortgage and lapse of time was found against. A finding was also given that the appellant was in possession of the suit

property. In view of the findings so given, the suit was dismissed as not maintainable. Dissatisfied with this, the respondents herein preferred an

appeal in A.S. No. 16 of 1977 to the Sub-Court, Nagarcoil. The learned Subordinate Judge took the view that the source of title put forth by the

plaintiffs earlier in O.S. No. 120 of 1962 was not the same as urged in the course of O.S. No. 824 of 1974, but that the claims put forth were

inconsistent and that the dismissal of the application for an amendment of the plaint in I.A. No. 126 of 1968 on the ground that the amendment

would introduce a new case would show that the case set up by the respondents in the course of O.S. No. 824 of 1974, could not have been

earlier setup or adjudicate upon and, therefore, the bar or res judicata would not be applicable. It was found that the respondents had also proved

their title as well as possession of the disputed property. In view of these conclusions arrived at, the learned Subordinate Judge allowed the appeal

and passed a decree in favour of the respondents declaring that their othi right had matured into an absolute title and possession over the disputed

property and also granting a permanent injunction restraining the appellant from trespassing into the disputed property and disturbing the

possession of the respondents. It is the correctness of this that is challenged in this second appeal.

During the pendency of the second appeal, the appellant died and the second and third appellants and respondents 21 to 24, were brought on

record as his legal representatives in C.M. P. No. 6255 of 1979. Similarly, on the death of the first respondent in the second appeal, respondents

25 to 29 were brought on record as his legal representatives in C.M. P. No. 9816 of 1981.

The principal contention of Mr. P. Ananthakrishnan Nair, the learned Counsel for the appellants, is that the suit O.S. No. 824 of 1974. Principal

District Munsiff''s Court, Nagarcoil out of which the second appeal has arisen, is barred by res judicata as a result of the prior adjudication in O.S.

No. 120 of 1962, Additional District Munsif''s Court, Nagarcoil. Elaborating this contention, learned Counsel submitted that in both the suits,

namely, O.S. No. 120 of 1962 and O.S. No. 824 of 1974, the respondents or their predecessors-in-title had claimed title to and possession of

the suit property and having regard to the rejection of the claim of the respondents or their predecessors-in-title that they were eatitled to the

property and were in possession of the same in the course of the adjudication in O.S. No. 120 of 1962, the respondents cannot be permitted to

urge again in the course of O.S. No. 824 of 1974, that they have title to and possession of the suit property. It was also pointed out by the learned

Counsel that what was projected in both the suits was only the title of the respondents and their possession of the disputed property and in view of

such a claim having been negatived earlier, the respondents could not maintain the subsequent suit in O.S. No. 824 of 1974 for the same relief In

addition the learned Counsel would also rely upon Explanation IV to Section 11, Civil Procedure Code, to contend that even assuming a different

root of title was available to the respondents in support of their claim to disputed property, such a case, which was available even at the time of the

institution of the suit in O.S. No. 120 of 1962, ought to have been put forth in the course of that suit and that on their failure to do so, they would

be precluded from doing so later by the principle of res judicata enshrined in Explanation IV to Section 11, Civil Procedure Code. Reliance in

support of these submissions was placed upon the decisions in Muhammad Rowther v. Abdul Rahiman Row-ther ILR (1923) Mad.135:

A.I.R.1923 Mad 257: 17 L.W.188. Mt. Tamiz-un-Nissa Bibi Vs. Muhammad Husain, . Mt.Sardaran v. Shivlal I.L.R.1944 Lah.568 : A.I.R.1945

Lab. 282. Luvar Popat Kala Vs. Luvar Bachu Rugnath and Others, and Govindan Nair v. Narayana Nair A.I.R.1965 T.C.266.

On the other hand, Mr. M. Srinivasan, the learned Counsel for the respondents, contended that in the earlier suit O.S. No. 120 of 1962 the

claim was made on the footing that the property belonged to the father of the plaintiff''s therein and that the plaintiffs had become entitled to the

property as a result of certain partition arrangements, while in the course of the suit out of which the second appeal has arisen, there was no

reference whatever to the title of the father of the plaintiffs; but it was claimed that they had themselves become owners of the property as a result

of non-redemption of the othi by lapse of time. In other words, the learned Counsel would submit that the claim of title to and possession of the

disputed property was made on different basis in the earlier and the subsequent suits, and, therefore, the principle of res judicata would not

operate. Reliance was also placed by the learned Counsel for the respondents upon certain observations in S.A. No. 905 of 1969 to show that the

principle of res judicata would not apply, as the case set up in the course of O.S. No. 824 of 1974, was attempted to be raised by the

respondents or their predecessors-in interest in the course of the appeal on the former occasion in A.S. No. 96 of 1964, Sub-Court Nagarcoil, by

means of an amendment to the plaint in I.A. No. 126 of 1968 and that had been rejected by the Sub-Court, Nagarcoil, and that rejection was

upheld by this Court on the ground that it would introduce a new case setting up a different source of title inconsistent with the case earlier put

forward. It was, therefore, pointed out that the case set up by the respondents in O.S. No. 824 of 1974, was a new or a different case inconsistent

with the earlier case set up in O.S. No. 129 of 1962 and, therefore, the principle of res judicaia u/s 11, CPC or as embodied in Explanation 4 to

Section 11, Civil Procedure Code, would not apply. Attention in this connection was also drawn to a decision in K.M. Kokila and Another Vs.

K.M. Rajabather and Another, . The further submission of the learned Counsel for the respondents was that in the course of disposing of S.A. No.

905 of 1969, this Court though fit to dispose of it only on the question of title and the question of possession was not decided and, therefore, the

mere confirmation of the judgment in A.S. No. 96 of 1964, Sub-Court, Nagarcoil, would not in any event operate as res judicaia, regarding the

question of possession. Strong reliancesi was placed in this connection on the decisions reported in Sheosagar Singh v. Sitaram Singh (1897)24

I.A.50: I.L.R.24 Cal.616. Ashgar Ali Khan v. Ganesh Dass (1917) 441.A.213: 34 M.L.J.12: 7 L.W 62: A.l.R.1917 P.C. 201 and Munshi

Mohammad Abdul Aziz Vs. Gulam Julani, .

In reply to these submissions, the learned Counsel for the appellants would point out that the scope of Section 11, Civil Procedure Code, read

with the Explanations appended thereto is different from the scope of an application under Order 6, Rule 17, Civil Procedure Code, for an

amendment of the plaint and their requirements and respective fields of operation are very different and the rejection or the allowing of an

application for amendment would not in any manner affect the applicability of the principle of res judicata, if otherwise the requirements of that

principle are established. The learned Counsel reiterated his reliance upon the decision in Muhammad Rowther v. Abdul Rahman Rowther ILR

(1923) Mad.135:17 L.W.188: A.I.R.1923 Mad.257 and the principles laid down by the Full Bench of the Lahore High Court in Mt. Sardaran v.

Shivlal I.L.R.(1944) Lah. 568 : AIR 1944 Lah 282. Attention was also drawn to the plaint in O.S. No. 824 of 1974 to establish that even in the

present suit the respondents have claimed title to the property as the lineal descendants of Thanuvan Arumugham and no different or new claim or

inconsistent claim had been made, though the plaint had also in addition stated that the othi in favour of Thanuvan Arumugham had become barred

by limitation and the respondents had become the owners of that property. Regarding the question of possession of the property also, the learned

Counsel for the appellants contended that all the decisions relied upon by the learned Counsel for the respondents related to cases where the

question had remained undecided or had been specifically left open and, therefore, it was held that the principle of res judicata will be innpplicable,

but, in this case, the affirmation by this Court in S.A. No. 965 of 1969 of the judgment of the lower appellate Court in A.S. No. 96 of 1964 would

conclude the question of title and possession as a final decision against the respondents herein.

Before considering these rival submissions it is necessary to bear in mind the vital requirements of the principle of res judicata contained in

Section 11, Civil Procedure Code, and the Explanations appended thereto. A plain reading of section. 11, Civil Procedure Code, establishes that

in order to apply the principle of res judicata as a bar to a subsequent proceeding, the following conditions must be satisfied viz., (1) The matter

directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and subtan-tially in issue in the former

suit; (2) The former suit must have been a suit between parties under whom they or any of them claim; (3) The parties must have litigated under the

same title in the former suit; (4) The Court, which decided the former suit must be a Court competent to try the subsequent suit or the suit in which

such issue is subsequently raised; and (5) The matter directy and substantially in issue in the subsequent suit must have been heard and finally

decided by the Court in the first suit. It would suffice for purposes of the present case to notice Explanation IV to Section 11, Civil Procedure

Code, which is as follows--

Any matter which might and ought to have been made ground of defence or attack in the former suit shall be deemed to have been a matter

directly and substantially in issue in such suit.

There is no dispute in this case that the earlier suit in O.S. No. 120 of 1962 was between the same parties or between the parties under whom

they or any of them claim and that the Court which decided the earlier suit in O.S. No. 120 of 1952 was a competent court to try O.S. No. 824 of

1974. Exhibit 4-31, is the certified copy of the judgment in O.S. No. 120 of 1962, Additional District Munsif''s Court, Nagarcoil, while Exhibits

A-32 and A-33 are the copies of judgments in A S. No. 96 of 1964, Sub-Court, Nagarcoil and S.A. No. 905 of 1969 respectively. The

applicability of the principle of res judicaia barring O.S. No. 824 of 1974, has to be considered after ascertaining the nature of the dispute in O.S.

No. 120 of 1969 and the adjudication therein. In that suit, the plaintiffs had claimed that the property in dispute belonged to Thanuvan Arumugam

and that on his death, they inherited the same and also partitioned the property and had thus become entitled to the property and were also in

possession. This claim was refuted by the defendants not only on the ground that the property did not belong to Thanuvan Arumugam, but that the

property was not the subject-matter of the deeds of partition and, therefore, the plaintiffs in O.S. No, 120 of 1962, did not acquire any title to the

property. Possession of the property was claimed by the defendants in O.S. No. 120 of 1962 to be with them. The case of the plaintiffs in O.S.

No. 120 of 1962 was negatived and it was held by all the Courts that the plaintiffs in O, S. No. 120 of 1962. Additional District Munsifs Court,

Nagarcoil, had not established that the property beloaged to Thanuvan Arumugham, that the property was not included in the deeds of partition

and that they were not in possession of the property. In other words, the claim made by ths plaintiffs in O.S. No. 120 of 1962, was on the ground

that the property belonged to Thanuvan Arumugham and the plaintiffs in that suit as his descendants had succeeded to the property, which had also

been partitioned in a particular manner. That claim was not accepted on the ground that the property was not established to be that of Thanuvan

Arumugham and that the deeds of partition relied upon as documents of title did not include the disputed property and apart from these, no other

document was also produced to establish that the property belonged to Thanuvan Arumugham. In the subsequent suit in O.S. No. 824 of 1974,

the plaintiffs have sought a declaration of their title to the disputed property, which is the same as in O.S. No. 120 of 1962. The claim that has

been made in this suit is reflected in paragraphs 2 to 5 of the plaint which is to the effect that Thanuvan Arumugham had an othi right under a

vellolai Othi dated 25-12-1028 M. E. that he was in possession, that the plaintiffs are the lineal descendants of Thanuvan Arumugham and that the

othi is barred by limitation and the plaintiffs have become the full owners. It is thus seen that in the subsequent suit in O.S. No. 824 of 1974, the

plaintiffs have claimed title to the disputed property only through Thanuvan Arumugham as his lineal descendants. The claim made is with reference

to the same property and seeks to establish the title of the plaintiffs to the disputed property on the footing that Thanuvan Arumugham was the

mortgagee in possession and as a result of the non-redemption of the mortgage, the plaintiffs in O.S. No. 824 of 1974, the lineal descendants of

Thanuvan Arumugham, have become the full owners. It is at once apparent that in the earlier suit in O.S. No. 120 of 1962 and in the subsequent

suit in O.S. No. 824 of 1974 the right asserted by the plaintiffs is one of title to the disputed property on the ground that the property belonged to

Thanuvan Arumugham and that as his lineal descendants, they are entitled to the property. In the earlier suit there was a specific reference to the

inheritance of the disputed property of Thanuvan Arumugham by the plaintiffs in O.S. No. 120 of 1962, while, in the subsequent suit, there is a

reference to Thanuvan Arumugham being the othidar in possession of the property and rights having accrued as a result of the non-redemption and

the plaintiffs claim as lineal descendants of Thanuvan Arumugham. Thus both, in O.S. No. 120 of 1962 and in O.S. No. 824 of 1974, the plaintiffs

have put forth their title to the property, but in O.S. No. 120 of 1962, the claim proceeded on the footing that Thanuvan Arumugham was the

owner of the property and as his children they will be entitled to the same, while in the later suit, what is claimed by the plaintiffs is that they have

title to the property as lineal descendants of Thanuvan Arumugham, though such a right is stated to have accrued to them as a result of the non-

redemption of the mortgage in favour of,Thanuvan Arumugham, It is thus seen that the title of the respondents was the matter directly and

substantially in issue in O.S. No. 824 of 1974, which was directly and substantially in issue in O.S. No. 120 of 1962. Again, both in O.S. No. 120

of 1962 and in O.S. No. 824 of 1974, the plaintiffs have claimed title to the disputed property only on the basis of the property having belonged to

Thanuvan Arumugham. In the earlier suit in O.S. No. 120 of 1962, the plaint proceeded on the footing that the property belonged to him, while in

the subsequent suit in O.S. No. 824 of 1974, there is no reference to the property belonging to Thanuvan Arumugham, but as the lineal decendants

of Thanuvan Arumugham the property is claimed by the plaintiffs. In both the suits, the plaintiffs have put forth their claim to the property as the

descendants of Thanuvan Arumugham. There is thus identity of title in the two litigations O.S. No. 120 of 1962 and O.S. No. 824 of 1974.

Indeed, as pointed out by the Supreme Court in Raj Lakshmi Dasi and Others Vs. Banamali Sen and Others, the test of res judicata is the identity

of title in the two litigations. Exhibit A-33 had finally decided and negatived the title to the disputed property claimed by the plaintiffs in O.S. No.

120 of 1962. In the course of Exhibit A-33, arising out of O.S. No. 120 of 1962, this Court has stated that it was in agreement with the view

expressed by the Courts below that the plaintiffs in that suit had not established their title to the disputed property. There is no controversy that the

property which formed the subject-matter of dispute in O.S. No. 120 of 1962 is the same as the disputed property in O.S. No. 824 of 1974. It is

thus clear that this Court has finally negatived the claim of the plaintiffs in O.S.No. 120 of 1962 that the property belonged to Thanuvan

Arumugham and that they became entitled to the property by reason of the partition deeds referred to in the plaint in O.S. No. 120 of 1962. That

would amount to a final determination of the question of title of the plaintiffs in O.S. No. 120 of 1962 by this Court which would preclude the

plaintiffs from again raising the issue relating to title. It is thus seen that all the requirements of Section 11, Civil Procedure Code, catalogued above

have been satisfied in this case. Section 11, Civil Procedure Code, would, therefore, stand squarely attracted and operate as a bar to the

maintainability of O.S. No. 824 of 1974.

The applicability of Explanation 4 to Section 11, Civil Procedure Code, may now be considered. In the course of the appeal in A.S. No. 96 of

1964, Sub-Court. Nagarcoil the plaintiffs in O.S. No. 120 of 1962, sought an amendment of the plaint in I.A. No. 126 of 1968, which was

dismissed by the Sub-Court, Nagarcoil. Whatever might have been the reasons for its dismissal it is evident that the plaintiffs in O.S. No. 120 of

1962, were aware that it was open to them to assert title to the property in dispute on the ground that the mortgage in favour of Thanuvan

Arumugham had become barred and they, as his lineal descendants, had become the owners of the property. That would mean that being fully

aware of their right to claim the property on that basis, the plaintiffs in O.S. No. 120 of 1962 did not put forth that claim in the course of that suit.

In the light of Explanation 4 to Section 11, Civil Procedure Code, which obliges a litigant to put forth all grounds of attack or defence, the failure of

the plaintiffs in O.S. No. 120 of 1962, to urge the claim put forth in O.S. No. 824 of 1974 available to them even then in the course of O.S. No.

120 of 1962 would operate as constructive res judicata within the meaning of Explanation 4 to Section 11, Civil Procedure Code. On this ground

also, the respondents in this second appeal would be precluded from maintaining the subsequent suit in O.S. No. 824 of 1974.

Reference may now be made to the cases cited as well as to a few other relevant decisions. Muhammad Rowther v. Rahman Rowther ILR

(1923) Mad. 135 : 17 L.W.888 : AIR 1923 Mad. 257 had to consider the question of the applicability of the rules of res judicata in a

subsequently instituted suit putting forth a claim to recover a share as one of the heirs of the deceased purchaser, when an earlier suit claiming a

share in the property on the footing as a co-owner under a joint purchase had been negatived. In applying Explanation 4 to Section 11, CPC and

holding that the subsequent ground of title ought to have been joined in the former suit, the Bench observed at page 140 as follows--

In the case before us the first case was for possession against the defendant as owner on the strength of plaintiff''s title by purchase; the present

case is again for possession on the strength of plaintiff''s title as owner by inheritance. In both cases plaintiff is litigenting under the same title,

namely, his ownership. He should therefore are have combined the two claims in the first suit.

However at page 141, after referring to Kameswar Prasad v. Rajkumari Rutton Koer (1893) ILR 20 Cal. 79 (P.C) : 19 I.A. 234. Krishnan, J.

stated that that case showed that if a person had two grounds on which he could base his claim or title to a thing he must bring forward both in the

first suit itself and he will be barred from bringing a second suit, unless indeed the union leads to confusion. At page 145, Ramesam, J. had

formulated four propositions, the fourth of which is relevant in this case and is in the following terms--

Where the plaintiff sought to recover a property as owner, a second suit to recover the same property also as owner is barred, even though the

details for the ownership are different from those in the first.

The learned Judge at page 146 has observed that it must be remembered that the claim in the second suit must be either substantially identical with

or part of the claim in the first suit.

In Mt. Tamiz-un-Nissa Bibi Vs. Muhammad Husain, on the death of a mortgagor leaving behind him three daughters and a son, the son sold

the property to the mortgagee as the sole heir of his father and one of the daughters filed a suit for the recovery of her share of the property on the

ground that she had inherited it. In that suit, the purchaser from the son did not set up the mortgage in his favour and the discharge of the mortgage

by the sale of the property by the son with the result that the daughter was granted a decree for recovery of her share. Subsequently, the

mortgagee-purchaser filed a suit for recovery of possession of three-fifths on the ground that as a mortgagee he was entitled to that share and the

daughter pleaded bar of suit by res judicata as a result of the prior adjudication. That was upheld on the ground that in the former suit it was the

duty of the mortgagee-purchaser to urge that if the purchase could not be sustained, at any rate, he was entitled to continue to remain in possession

as a mortgagee and that defence ought to have been taken and in its absence, the subsequent suit would be barred by res judicata,

The decision of the Full Bench in Mt. Sardaran v. Shiv Lal I.L.R.(1944) Lah. 568 : AIR 1944 Lah. 282 is instructive. There, the question

arose whether the dismissal of an earlier suit in relation to a house which was stated to be under a charge for betrothal and marriage expenses and

could not therefore, be sold in execution of a decree, would bar a subsequent suit for a declaration that a share in the house belonged to the

plaintiffs in the subsequent suit as heirs of the father and not liable to attachment and sale in execution of the decree against the father. In holding

that the second suit would be barred, the Full Bench referred to the decision in Mohammed Rowther v. Abdul Rehman Rowther ILR (1923) Mad.

135: 17 L.W. 188: AIR 1923 Mad. 257 and stated as under:

In that case, a person instituted a suit against a trespasser in possession, for partition and recovery of his share in certain lands on the footing that

he was a co-owner under a joint purchase made by himself and his two deceased brothers, but his claim was dismissed on the ground that the

purchase was not a joint one but the sole purchase of one of the deceased brothers, and the former instituted a subsequent suit to recover his share

as one of the heirs of the deceased purchaser. In these circumstances, it was held that the suit was barred by the rule of res judicata as the plaintiff

ought to have joined his subsequent ground of tile in the former suit u/s 11, Explanation 4, Civil Procedure Code. It must be pointed out in both the

-suits the plaintiff claimed ownership of property as a cosharer. In the first suit he claimed to be a co-owner under a joint purchase. In the second

suit he sought to recover the share of one of the heirs of the deceased purchaser. In other words, the right claimed was the same in both the suits

though the grounds on which the right was claimed were different. Ramesam, J., in his judgment laid down four propositions after an analysis of all

the decisions cited before the Court. The second and the third of these propositions have already been cited as instances earlier in this judgment.

With respect to the second and third propositions, the learned Judge was of the opinion that the subsequent suit was not barred. The fourth

proposition was that where the plaintiff sought to recover a property as owner, a second suit to recover the same property also as owner is barred,

even though the details for the ownership are different from those in the first suit. I am in respectful agreement with the propositions of law laid

down in Mohammed Rowther v. Abdul Rehman Rowther ILR (1923)Mad. 135: 17 L.W.188.

At page 286, it was observed by the Full Bench as under:

In the previous suit, and in the subsequent suit, the same right was claimed, that is, ownership of certain land. In the former suit ownership was

claimed on the ground of purchase, in the second suit ownership of the same land was claimed on the ground of heirship. These two claims were

not so inconsistent as to be destructive of each other. When the same right is claimed in both the first suit and the second suit but the right is based

on one ground in the first suit and on a different ground in the second suit, the second suit is barred by the doctrine of res judicata as the plaintiff in

both cases is litigating under the same title. The plaintiff may claim ownership of a house by adverse possession, by gift and by purchase. If he

wishes to regain possession of a house he must file one suit and claim possession of the house on all the grounds of attack which are open to him.

He cannot file a suit on one ground alone and when that claim has been determined against him claim owership of the same house on another

ground. The basis of the claim is the ownership of the house and he is litigating under the same title in the suits in which he is claiming ownership of

the house. In the case alluded to above, the plaintiff claimed the ownership of the land by purchase in the first suit and by plaintiff in the other suit,

but the important point to remember is that he claimed ownership of the house and not any other collateral right. He was therefore litigating under

the same title in both the suits, i. e., his title to the property as owner.

In Sundarabai v. Devaji 1953 S.C. J. 693: (1953) 2 M.L.J.722: AIR 1954 S.C.88. Bhagwati, J. had occasion to consider the same question

with reference to the validity of an adoption of one Devaji made by one Gangabai, which had earlier been declared under the terms of an award to

be invalid. In holding that in the earlier as well as subsequent proceedings the right asserted was the same as the adopted son of Shankar, the

Supreme Court proceeded to point out that where the right claimed in both suits is the same the subsequent suit would be barred by res judicata

though the right in the subsequent suit is sought to be established on a ground different from that in the former suit. It would be only in those cases

where the rights claimed in the two suits were different that the subsequent suit would not be barred as res judicata even though the property was

identical. In so holding, the Supreme Court approved of the ratio of the Full Beach of the Lahore High Court in Mt. Sardaran v. Shivlal ILR

(1944) Lah.568 : AIR 1944 Lah. 282 though ultimately it was held that the earlier adjudication was on the basis of a compromise and, therefore,

Section 11,Civil Procedure Code, may not, in terms, apply.

In this case, in both the suits O.S. No. 120 of 1962 and O.S. No. 824 of 1974, the plaintiffs had put forth only their title to the disputed

property, which was the same though in the latter suit there was no reference to any claim of inheritance from Thanuvan Arumugham was as in the

earlier suit but it was stated that as lineal descendants of Thanvuan Arumugham, by non-redemption and limitation the plaintiffs were entitled to the

disputed property. In substance, what was agitated in both the suits was only the title of the plaintiffs to the disputed property and in the light of the

principles laid down in Muhammad Rowther v. Abdul Rehman Rowther ILR (1923) Mad. 135: 17 L.W.188 and Mt. Sardaran v. Shivlal ILR

(1944) Lah.568: AIR 1944 Lah 282 and approved by the Supreme Court in Sundarabai v. Devaji 1953 S.C.J. 693. (1953) 2 M.L.J. 782 :

A.I.R.1952 S.C. 82 the second suit, O.S. No. 824 of 1974, must be held to be barred. In view of the decision of the Supreme Court referred to

earlier, it is unnecessary to deal with the other cases relied upon by the learned Counsel for the appellants.

Earlier, it has been seen as to how the plaintiffs in O.S. No. 120 of 1962 had attempted to seek an amendment of the plaint during the

pendency of the appeal, A.S. No. 96 of 1964 in I.A. No. 126 of 1968 and how that application was rejected by the Sub-Court, Nagarcoil, which

was also affirmed by this Court. n the process of rejecting the application for amendment in the course of Exhibit A-33, it had been observed that

to allow the amendment would be to introduce a new case, which would enable the plaintiffs in O.S. No. 120 of 1962, to set up a different source

of title inconsistent with the case put forward in the original plaint. It is this observation that has been taken advantage of to put forth a point that the

case pleaded in O.S. No. 824 of 1974, is anew case, different from what had earlier been pleaded in O.S. No. 120 of 1962. Those observations

were made by this Court in considering the propriety of the order of Sub Court. Nagarcoil, in dismissing the application for amendment of the

plaint and cannot be stated to have been made in the context of the applicability of Section 11, Civil Procedure Code, read with Explanation IV,

thereto. Advantage cannot be taken of these observations by the respondents in this second appeal to claim that what was urged in O.S. No. 824

of 1974 was a totally new case. The application for an amendment of the plaint, as seen earlier, had also been rejected on the ground that to allow

it would be to introduce an inconsistent case. Taking advantage of this, the learned Counsel for the respondents relied upon the observations of

Krishnan, J., in Mohammed Rowther v. Abdul Rehman Rowther ILR (1923) Mad.135:17 L.W.188 set out earlier and also the decision in K.M.

Kokila and Another Vs. K.M. Rajabather and Another, to contend that the case set up in O.S. No. 824 of 1974, was an inconsistent case and

would have led to confusion and embarrassment and, therefore, the basis of the two suits in O.S. No. 120 of 1962 and O.S. No. 824 of 1974,

ought to be treated as different and distinct so that the bar of res judicata is not attracted. Indeed, a persual of the plaints in O.S. No. 120 of 1962

and O.S. No. 824 of 1970, does not disclose any inconsistency so that the claim in both the suits could not have been joined together. The claim

made in both the suits was one of title to immovable property. In both the suits, the plaintiffs had claimed only as lineal descendants of Thanuvan

Arumugham. In the earlier suit in O.S. No. 120 of 1962, they had claimed that the property belonged to Thanuvan Arumugham and that they

inherited and also partitioned the property and had thus become entitled to it. In the latter suit O.S. No. 824 of 1974, the plaintiffs have reiterated

their title to the property and had carefully avoided any reference to Thanuvan Arumugham being the owner of the property and their having

inherited it. But they claimed the property as lineal descendants of Thanuvan Arumugham, after stating that Thanuvan Arumugham was the

mortgagee in possession and that the property had become theirs owing to the non-redemption and limitation. Thus, the claims made in O.S. No.

120 of 1962 and O.S. No. 824 of 1974, cannot be stated to be so inconsistent or totally different as to lead to any confusion or embarrassment

by their union. Indeed, Krishnan, J. had pointed out in Muhammad Rowther v. Abdul Rehman Rowther ILR (1923) Mad.135 that in that case ths

joining together of the two claims, the one under the purchase and the other as heir, would have led to no confusson or embarrassment. Similar is

the situation in this case also, as by the union of these two claims made in O.S. No. 129 of 1962 and O.S. No. 824 of 1974, no confusion or

embarrassment would have resulted at all. In the decision in K.M. Kokila and Another Vs. K.M. Rajabather and Another, it was pointed out that

in the earlier suit the claim was made as legitimate son, while, in the subsequent suit the claim was rested on the basis of being an illegitimate son

through an exclusively kept concubine. The inconsistency in such a case is striking, as concubinage is the very antithesis of marriage In that sense,

the claims could not have been put together and urged in the course of the same suit as held in K.M. Kokila and Another Vs. K.M. Rajabather

and Another, but that decision would not in any manner assist the respondents in this case where the claims in the earlier and the subsequent suits

have been held to be the same, namely, title of the plaintiffs to the disputed property.

That leaves for consideration the objection that on the earlier occasion while disposing of S.A. No. 905 of 1969, the question of possession of

the undisputed property was not gone into, as this Court felt that a decision on the question of title would suffice for the disposal of the second

appeal, and, therefore, there cannot be any final adjudication on the question of possession, as the judgment of the Courts below was merely

affirmed in second appeal. A perusal of Exhibit A-33 no doubt, discloses that the findings and the judgments of the Courts below were affirmed on

the question of title and possession, though there was no independent consideration and discussion of the question of possession of the property.

That would mean that though there was no specific reference to the question of possession this Court had decided by affirming the findings of the

Courts below that the plaintiffs in O.S. No. 120 of 1962 were not in possession of the disputed property. The decisions in Sheosagar Singh v.

Sitaram Singh (1897) 241.A.50: I.L.R.24 Cal.616. Ashgar Alikhan v. Ganesh Dass (1917) 44 I.A.213:34 M.L.J.12:7 L.W 62 and Munshi

Mohammad Abdul Aziz Vs. Gulam Julani, were all cases where the issue had not been heard and finally decided in the earlier suit or the issue had

been refused to be determined or the issue was not decided at all. Those decisions cannot, therefore, be pressed into service by the respondents to

contend that there had been no final decision or adjudication on the question of possession.

It would be relevant in this connection to notice the decision of the Supreme Court in Sheodan Singh Vs. Smt. Daryao Kunwar, . Four suits

were tried together and some of the issues were common to all the suits and one of the common issues was in relation to the title, which was found

in favour of the respondents in the appeal before the Supreme Court. The title suit filed by the appellant was dismissed and his other suit was

partially decreed and the two other suits of the respondents were decreed. Four appeals had been filed against the decrees in the suits and the

High Court dismissed two appeals, one as time barred and the other for failure to apply for translation and printing of the record. Since by reason

of the dismissal of those two appeals, the adjudication regarding the title of the respondents had become final, the respondent prayed for the

dismissal of the other two appeals also and the High Court dismissed the other two appeals holding that they were barred by res judicata. On

further appeal, to the Supreme Court, two questions were raised. The first was, whether the dismissal of the two appeals would operate as res

judicata to justify the dismissal of the other two appeals and whether the dismissal of the two appeals on the ground of limitation and for not

printing the records Could be regarded as a final decision after the hearing of the appeals. The Supreme Court held that the dismissal of the

appeals by the High Court on the ground of res judicata was quite justified as a common issue was involved and the adjudication on the question of

title had become final by the dismissal of the appeals. In dealing with the finality attained by the dismissal of the appeals on the ground of limitation

and for failure to apply for translation and printing of the record so as to attract the principles of res judicata, the Supreme Court observed as

follows at page 312--

Our conclusion on the question of res judicata raised in the present appeals is this. Where the trial Court has decided two suits having common

issues on the merits and there are two appeals therefrom and one of them is dismissed on some preliminary ground, like limitation or default in

printing, with the result that the trial Court''s decision stands confirmed, the decision of the appeal Court will he res judicata and the appeal Court

must be deemed to have heard and finally decided the matter. In such a case the result of the decision of the appeal Court is to confirm the

decision of the trial Court given on merits, and if that is so, the decision of the appeal Court will be res judicata whatever may be the reason for the

dismissal.

(Italics mine)

It would be a different matter, however, where the decision of the appeal Court does not result in the confirmation of the trial Court given on the

merits as for example, where the appeal Court hold that the trial Court had no jurisdiction and dismisses the appeal even though the trial Court

might have dismissed the suit on the merits.

The principle laid down in the aforesaid decision would thus establish that the effect of confirmation of the judgments of the Courts below in S.A.

No. 905 of 1969 was to affirm the decision of the trial Court as well as the lower appellate Court on merits and that would mean that even the

question of possession had been adjudicated upon adversely to the respondents and it is not, therefore, open to them to re-agitate this question.

For the foregoing reasons, the prior adjudication in O.S. No. 120 of 1962. Additions District Munsif''s Court, Nagarcoli, which negatived the

claim of the respondents as regards title to and possession of the suit property therein, which is the same as in O.S. No. 824 of 1974, would bar

the subsequent suit in O.S. No. 824 of 1974, filed by them, on the principle of res judicata. The lower appellate Court was, therefore, in error

when it took the view that the subsequent suit will not be barred. Consequently, the second appeal is allowed and the judgment and decree of the

lower appellate Court are set aside and those of the trial Court will stand restored with costs throughout.