Th. Anchal Singh vs Th. Krishan Singh and Others

K.V. Gopalakrishnan Nair, J.—This appeal is directed against the decision of the District Judge at Jammu who, on appeal, reversed the

judgment of the Subordinate Judge, Jammu, and remanded the suit to him for disposal according to law.

The suit in this appeal was instituted in the Court of the Subordinate Judge, Jammu by Respondents 1 to 4 against the Appellant and his vendor.

Some other persons also were impleaded as pro forma Defendants, but as they are of no consequence to this appeal, they need not be noticed

further. The Plaintiffs sought a declaration that Kahan Singh, the second Defendant, had no right or title to alienate certain properties and that the

sale of those properties by him in favour of the Appellant, first Defendant, is therefore void and that they, as members of the family of the last

owner of the properties, are entitled to actual possession of them. The vendee raised several defences to the suit; but the one with which this

appeal is concerned relates to the plea of res judicata. It is based on the following facts.

The Plaintiffs had in a prior litigation sought to pre-empt the sale executed in favour of the present Appellant by Kahan Singh, the second

Defendant. That suit was decreed and the Plaintiffs were directed to pay the price to the vendee on or before 11th Poh 2011 in default of which

the suit was to stand dismissed. The Plaintiffs did not make the payment as directed and the suit stood dismissed. No question of want of title on

the part of the vendor to effect the sale in favour of the present Appellant was raised in that suit. The specific basis of the present suit is that Kahan

Singh the vendor had no title to alienate the property. As this ground of attack might and ought to have been raised in the previous suit for pre-

emption the Plaintiffs are hit by the doctrine of constructive res judicata embodied in Explanation IV to Section 11 of the Code of Civil Procedure.

The trial Court after hearing arguments on the question of res judicata held that the suit was barred by constructive res judicata. The Plaintiffs

appealed to the District Court which set aside the decision of the trial Court. The vendee who is aggrieved has now come up to this Court.

It is well to read at the outset the provisions of Expl. IV to Section 11 of the Code of Civil Procedure.

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

directly and substantially in issue in such suit.

What we have first to consider is whether the question of the vendor's title to the property could be directly and substantially in issue in the

former suit for pre-emption. If it could be, the mere omission on the part of the Plaintiffs, to make it a ground of attack in that suit will not save

them from the bar of res judicata, because what they might and ought to have made a ground of attack in that suit would be deemed to have been

a matter directly and substantially in issue in that suit and on account of the ultimate dismissal of that suit deemed to have been decided against

them. In considering whether a matter would be directly and substantially in issue in a suit, one has necessarily to take into account the nature and

scope of the suit. This leads us to an examination of the nature and scope of a pre-emption suit.

In Gobind Dayal v. Inayatullah ILR All 775 (FB). Mahmood, J., dealt with the right of pre-emption as follows:

The right of pre-emption is not a right of 're-purchase' either from the vendor or from the vendee, involving any new contract of sale; but is simply a

right of substitution, entitling the pre-emptor, by reason of a legal incident to which the sale itself was subject, to stand in the shoes of the vendee in

respect of all the rights and obligations arising from the sale under which he has derived his title.

In Musammat Sahodra Bibi Vs. Bageshri Singh and Another, , a Division Bench while dealing with the scope of a pre-emption suit held that a

pre-emptor is not entitled to put the vendor on proof of his title to the property which he purports to sell and that principle of pre-emption is

substitution. They emphasised the position further by stating that a pre-emptor is bound to take the title which the vendee was ready to take.

The Privy Council in Abdul Wahid Khan v. Shalukha Bibi ILR Cal 496 at p. 502, pointed out that file law of pre-emption

is not applicable where the person who would be entitled to pre-emption denies the title of the person who proposes to sell, and alleges that they

are not co-sharers and that he is entitled to the whole of the property.

Their Lordships of the Judicial Committee were no doubt dealing in that case with the provisions of the Oudh Laws Act, 1876, which contained

the law of pre-emption applicable to Oudh. But the relevant statutory provisions in force in this State are for the present purposes substantially the

same as those which obtained in Oudh and, therefore, the aforesaid ruling of the Privy Council applies equally to the instant case.

The position, therefore, is that a pre-emptor merely steps into the shoes of the vendee and must take the same risk as the vendee has taken

and pay the same price which the vendee has bona fide paid. Challenge of the right of the vendor is clearly outside the purview of a pre-emption

suit, and is liable to defeat the right of pre-emption itself.

In the present suit, the Plaintiffs-Respondents have expressly denied the right and title of the vendor to sell the property and have, on this

ground asked for a declaration that the sale is void. Such a ground obviously conflicts with and derogates from the cause of action or the matter in

a pre-emption suit. It cannot, therefore, be said that the ground of attack made in the present suit might properly have been made in the prior pre-

emption suit. Even if we assume that such a ground of attack might have been made in the pre-emption suit, we find it impossible to hold that it

ought to have been made in that suit.

The question whether a matter ought to have been made a ground of attack must depend on the particular facts of each case. As a simple rule

of general application it may be said that if the introduction of a matter into a suit was necessary for a complete and final decision of the right

claimed by the Plaintiff therein, it must be deemed to be a matter which ought to have been made a ground of attack in that suit, unless the matters

in that and the subsequent suit are ""so dissimilar that their union might lead to confusion."" In Kameshwar Pershad v. Rajkumari Rattan Koer ILR

Cal 79 (PC) at p. 85, the Privy Council laid down the principle thus:

That it ""might"" have been made a ground of attack is clear. That it ""ought"" to have been appears to their Lordships to depend upon the particular

facts of each case. Where matters are so dissimilar that their union might lead to confusion, the construction of the word ""ought"" would become

important; in this case the matters were the same.

In Kamalabai Vs. Ramdas Manga Ingale, , a Division, Bench discussed the principles governing the applicability of Explanation IV to Section

11 CPC Patkar, J., after referring to the decided cases stated that if the ground of attack in the second suit was so incongruous to the ground of

attack in the previous suit that they could not be joined together conveniently as being mutually destructive of each other, the constructive principle

of res judicata would not apply. Baker, J., pointed out that where two alternative cases would be mutually destructive and the evidence in support

of them would be contradictory, the omission to set up one of them in a former suit will not attract the principles of constructive res judicata to the

subsequent suit where it is set up.

In Masilamania Pillai v. Thiruvengadam Pillai ILR Mad 385, while pointing out that a Plaintiff could not be allowed to litigate his title over again,

an important reservation was made that if the claims should be mutually destructive or it there will be any embarrassment in joining the rights, the

two titles could be separately litigated.

The consensus of authorities is that it cannot be said of any matter that it ""ought"" to have been set up as a ground in a former suit if its

introduction would have been incongruous to the matter of that suit.

In Deputy Commissioner of Kheri v. Khanjan Singh ILR All 331 at pp. 338, 339 the Privy Council observed:

Their Lordships agree with the Courts in India in thinking that what was in question in that former suit was the right of pre-emption in respect of

what Man Kunwar had power to convey and did convey that is her widow's interest, and that the introduction of any question as to the effect of

the conveyance upon the reversion would have been incongruous to the matter of the suit.

It is unnecessary to multiply authorities. The position clearly appears to be that it is untenable to contend that the Plaintiffs ought to have set up

as a ground of attack in the former suit for pre-emption the infirmity of the vendor's title. It is incorrect even to say that they might properly have set

it up in that suit without impairing the right of pre-emption on which that former suit was founded. A plea based on the want of title would not only

have imported an incongruous element into the former suit but would also have been destructive of the right claimed by the Plaintiff in that suit.

These two contradictory claims could not co-exist in one suit; their combination would surely have led to embarrassment and stultification of the

right put forward by the Plaintiffs in the former suit. We are, therefore, definitely of the opinion that the present suit is not affected by the rule of

constructive res judicata.

None of the authorities cited on behalf of the Appellant leads us to a different conclusion. The case in Luvar Popat Kala Vs. Luvar Bachu

Rugnath and Others, , is one where the ground of attack made in the former suit and that made in the subsequent suit could well co-exist and ought

to have been made in the former suit itself. There, the first suit was for possession on the strength of the Plaintiff's initial title and the second suit was

for possession of the same property on the strength of the Plaintiff's title by adverse possession. It will be seen that in both the suits the Plaintiff

based his claim on title, although the title was claimed in each case on different allegations. A single Judge of the Bombay High Court therefore held

that it was not a case of two contradictory pleas which might not and ought not to have been taken in the former suit itself. On the contrary, the

basis of the two claims were not mutually destructive and could have been conveniently put forward in the earlier suit. He, therefore, held that the

subsequent suit was barred by constructive res judicata.

In AIR 1949 381 (Nagpur) , the facts were that in a former suit the vendor did not raise the plea that the transaction was not one of sale, but

allowed a pre-emption decree to be passed. When the pre-emptor went to take possession of the property, vendor resisted. A suit for possession

brought by the decree-holder was resisted by the vendor on the ground that the transaction was not a sale but a mortgage. It was held by a single

Judge of the Nagpur High Court that the vendor who was a party to the pre-emption suit was concluded by the decree passed in that suit on the

undisputed basis that the transaction was a sale. It is difficult to see how this decision can help the Appellant in the instant case.

In Ramaiah v. Lakshmi Narayanan AIR 1926 Mad 234, the former as well as the subsequent suit was brought on title. The second suit was

brought on the same title merely alleging different facts as the basis of that title. Phillips J., pointed out that in fact the second suit was simply a new

form of the Plaintiff's claim as against the Defendants (please page 235 of the Report). In view of these facts the latter suit was held to be barred

by res judicata. This decision is far removed from the facts of the present case.

It follows from the foregoing that the decision of the District Judge was correct. The appeal fails and is dismiss with costs. The case will now

go back to the trial Court for being heard and dealt with according to law in respect of the other matters on which the parties are at variance.

S. Murtaza Fazl Ali, J.

I agree.