Thakur Balwant Singh and others vs Thakur Nasib Singh

C. J.

This is plaintiff's first appeal and arises out of a suit instituted by them for possession of 2139 Sq. feet of vacant site situated in Purani Mandi,

Jammu against the defendant, Nasib Singh. The plaintiffs case was that they were the owners of the land and had been dispossessed by the

defendant on 31st January, 1953 ; and that the defendant without any right or title got into possession of the land and stored timber thereon. The

plaintiffs' case further was that their house is adjacent to the land in dispute and there was a Kotha on that land which was being let out by the

plaintiffs from time to time, that the Kotha fell down during the rains in the year S. 2006 and the plaintiffs wanted to reconstruct that Kotha but the

defendant obstructed them which gave rise to the dispute between the plaintiffs and the defendant. It was further averred by the plaintiffs that there

was a latrine on a portion of the land excluded from the subjectmatter of the present suit. The latrine and a part of the land over which it stood had

been acquired by the Municipal Committee and the plaintiffs had claimed compensation therefore, which was contested by the defendant and the

case was referred to the Civil Court. The defendant brought a suit for declaration of title and for realising compensation with respect to the land

covered by the latrine and his suit was dismissed by the Munsiff, Jammu, who held that the defendant, who was the plaintiff in that case, was

unable to prove his title to the land covered by latrine. The judgment of the trial Court was upheld by the Additional District Judge, Jammu as well

as by the High Court in second appeal. The present suit has been filed by Balwant Singh plaintiff in representative capacity as Karta of joint Hindu

family of which his brother Janmez Singh, Kripa Singh and Narendra Singh are coparceners. Lastly, it was averred by the plaintiffs that disputes

arose in respect of the land between them and the defendant which resulted in a number of criminal cases as well as proceedings under section 145

of the Cede of Criminal Procedure which were decided against the plaintiffs and therefore the plaintiffs had brought the present suit. The defendant

resisted the plaintiffs suit on grounds, inter alia, that the plaintiffs had no right or title over the land, that the defendant had been in possession of this

land over 12 years prior to the date of the suit and that defendant inherited the land from Mst. Bilori who had taken him in adoption. The trial

Court after going through the pleadings of the parties raised various issues and the important among them are the following :

Have the plaintiffs any title to the property and have the defendant taken forcible possession of the land in suit on 3111958 ? O. P. Pltf.

Are the defendants in possession of the land in suit for more than 25 years as owners as alleged by them ? O.P.D.

To what relief, if any, are the plaintiffs entitled ? O. P. P.

Another issue was added by the trial Court after the Munsiff had dismissed the defendant's suit for declaration against the present plaintiffs and the

judgment and decree of the trial court was affirmed by the High Court in second appeal. The issue is as follows :

Whether the judgment of the High Court in civil second appeal No. 10 of 1961 decided on 10121962 operated as res judicata in the present

case ?

The parties adduced evidence and the learned trial Judge held that the plaintiffs miserably failed to prove their title to or their possession over the

property in dispute within 12 years of the suit and that the judgment of the High Court did not operate as res judicata in the present case. The

plaintiff's suit was accordingly dismissed with costs. The plaintiffs have appealed.

The counsel appearing for the appellants wanted to take up the point of res judicata first. He submitted that if he succeeded in showing that the

decision of the High Court in second appeal operated as res judicata in the present case it will not be necessary for him to urge the other grounds

mentioned in the grounds of appeal. As regards the question of res judicata the learned counsel argued that if the case does not fall within the .four

corners of section 11 of the Code of Civil Procedure general principles of res judicata would apply and under section 43 of the Specific Relief Act

a declaration made in the suit between the same parties will be binding on them in the subsequent suit. It is pointed out that the defendant had

sought declaration that he was entitled to claim compensation for the land and the latrinh standing thereon from the Municipality. That suit was

contested by the present plaintiffs. The trial court refused to grant declaration in favour of the plaintiff (the present defendant) and dismissed his suit

The decision of the trial Court was upheld by the High Court in second appeal. The counsel for the appellants argued that in that suit the parties

were the same and the property in regard to which it was brought was a portion of the property which is the subjectmatter of dispute in the present

suit and the declaration having been refused by the Courts in that suit the findings in that case would be binding on the defendant in the present suit

under section 43 of the Specific Relief Act. The question that falls for determination is whether the general principles of res judicata would be

applicable to the case which is not covered by section 11 of the Code of civil Procedure and whether under section 43 of the Specific Relief Act

the defendant is barred from asserting his title to the land in dispute in view of his having failed to obtain declaration of title in respect of another

portion of land which is not the subjectmatter of the present suit. For the application of section 11, C. P. Code, certain conditions have necessarily

to be fulfilled and these are :

A matter which is directly or substantially in issue must have been directly or substantially in issue in former suit ;

the parties in both the suits should be the same;

that the court which tried the former suit must be competent to try the subsequent suit or suit in which such issue has been subsequently raised.

The court which trial the first suit was not competent to try the present suit As the provisions of section 11, C P Code, are not applicable to the

present suit the general principles of res judicata would not be applicable to it. In this view I am fortified by a ruling of the Madras High Court, A I,

R. 1952 Madras 384 in which it has been held :

Section 11 is not an exhaustive statement of the doctrine of 'res judicata' and the principle has a wider application than is warranted by the strict

language of the section. To the extent to which S. 11 goes and in respect of cases falling within the enacted words, the conditions and limitations

imposed by the section cannot be overriden or ignored by an appeal to general principles.

In Jankirama Iyer versus Nilakanta Iyer, A. I. R. 1962 Supreme Court 633 it was laid down :

Where the plaintiffs in the earlier suit and the later suit are not the same or parties, who claim through each other, S 11 in terms cannot apply.

Where S. 11 is thus inapplicable it would not be permissible to rely upon the general doctrine of res iudicata. Where the court is dealing with a suit

the only ground on which res judicate can be urged against such a suit can be the provisions of S. 11 and no other.

The learned counsel for the appellants contended that the findings arrived as in the previous declaratory suit would be binding on the present

defendant under section 43 of the Specific Relief Act. Section 43 of the Specific Relief Act reads as under :

A declaration made under this Chapter is binding only on the parties to the suit, persons claiming through them respectively, and where any of the

parties are trustees, on the persons for whom, if in existence at the date of the declaration, such parties would be trustees.

At the outset it may be pointed out that no declaration was made in the previous suit filed by the present defendant. His suit was dismissed because

he could not establish his title to the property in dispute which was different from the one which is the subjectmatter of dispute in the present suit.

Under these circumstances, in our view, section 43, Specific Relief Act, has no application to the present suit. In the first place no declaration was

given in the former suit and the property in respect of which declaration was sought is not the property which is in dispute in the present suit.

Moreover, the appellants have not taken this ground in the grounds of the appeal. We, however allowed the appellants to argue the point but we

are of the view that section 43, Specific Relief Act, is not helpful to the appellants.

Now we come to the merits of the present case. The plaintiffs appellants had alleged that they were the owners of the property and that they had

been forcibly dispossessed on 31st January, 1958 by the defendant. It is well settled that where the plaintiff alleges that he had been dispossessed

and the suit is one for possession he has to prove that he was in possession within 12 years of the suit. It was for the plaintiffs to show that they had

title to the property in dispute and they had been dispossessed within 12 years from the date of the suit. The plaintiffs have examined a number of

witnesses to prove that they were in possession of the property in dispute through tenants and were realising rent of a Kotha which was standing

over it. The Kotha as appears from the evidence had fallen to the ground on account of rains in S. 2006 and the plaintiffs wanted to reconstruct

that Kotha. They applied for permission to the Municipality and the defendant obstructed them from doing so and hence the present suit. The

counsel for the appellants instead of taking us through the evidence produced by the plaintiffs in support of their title and possession, has relied

upon the infirmities and weak points which exist in the defendant's evidence showing thereby that the defendant has no right or title over the

property in dispute. This approach is absolutely incorrect. It is for the plaintiffs to establish on the strength of their own evidence, their title to and

possession over the property in suit and not to depend on the weaknesses or infirmities in the defendant's evidence. The plaintiffs have produced

oral and documentary evidence and it has been carefully considered by the learned trial judge. We have also gone through this evidence and we

fully agree with the criticism levelled by the trial Judge in regard to the evidence of the plaintiffs' witnesses. (Note : The court then discussed

evidence produced by parties and concluded as under. Editor.)

Considering the evidence aduced by the parties we have come to the irresistible conclusion that the plaintiffs have failed to prove their title to the

property in dispute as also their possession during 12 years prior to the date of the suit. On the other hand, the defendant's evidence clearly shows

that the land belonged to one Gusawa Singh, grand father of the defendant and after his death Kabla Singh defendant's uncle was in possession of

the land ; that Kabla Singh had brought up the defendant as his adopted son and that after the death of Kabla Singh the land came into possession

of Mst. Bilori his widow ; after Mst, Bilori the defendant got possession of the land and rented it to tenants and stored timber on it. The trial Court

also has come to the same findings and in our view correctly. The plaintiffs having failed to prove their title to and possession over the land within

12 years from the date of institution of the suit are not entitled to the declaration and possession as prayed for in the plaint. The plaintiffs' suit has

rightly been dismissed. We find no force in this appeal which is dismissed but in view of the circumstances of the case we leave the parties to bear

their own costs in this appeal.