Gurpal Singh Ahluwalia, J
1. This Second Appeal has been filed against the judgment and decree dated 30-8-1997 passed by 3rd Additional District Judge, Vidisha in Civil
Appeal No. 82-A of 1994, thereby setting aside the judgment and decree passed by Civil Judge, Class 1, Kurwai, Distt. Vidisha in Civil Suit No. 4-
A/1984.
2. The original Plaintiff Gopal Rao, who died during the pendency of the civil suit and was substituted by his legal representatives, had filed a suit for
declaration of title and permanent injunction which was decreed by the Trial Court and it was held that the plaintiff is the owner and in possession of
the land in dispute and permanent injunction was issued against the defendants no. 1 to 3/respondents no. 2 to 4.
3. The necessary facts for disposal of the present appeal in short are that the original Plaintiff Gopal Rao, filed a suit for declaration of title and
permanent injunction. Original Plaintiff Gopal Rao expired during the pendency of the Civil Suit and accordingly, the appellants were brought on record
being the legal representatives of Original Plaintiff Gopal Rao. It is the case of the plaintiffs/appellants that Narayan Rao, father of original plaintiff
Gopal Rao, was the Jamindar of the land in dispute. It was pleaded that the disputed property i.e., Survey No. 98 area 43 Bigha, Survey No. 332 area
1 Bigha 1 Biswa, total area 44 Bigha and 1 Biswa was in possession of the original plaintiff Gopal Rao, and after his death, the plaintiffs who were
brought on record came in possession of the same. It was pleaded that earlier Roopchand was in possession of the land in dispute in the capacity of an
agriculturist. Roopchand expired in the year 1937. Earlier the land was under the control and supervision of Court of Wards, Barwai and since, huge
rent was outstanding against Roopchand and as he was not in a position to repay the same, therefore, he surrendered the land and under the orders of
the His Highness, the property in dispute was confiscated by Court of Wards. The disputed land was thereafter given on ""patta"" to Narayan Rao, the
father of the original plaintiff and this fact is also known and accepted by the defendants, and from the date of the ""Patta"", the predecessor in title and
now the plaintiffs are in possession of the land in dispute. At the time of abolition of Zagirdari, Narayan Rao was in cultivating possession of the land
in dispute and as per the provisions of Madhya Bharat Zamindari Abolition Act, Narayan Rao became the Pakka Tenant and after his death, the
original plaintiff Gopal Rao became the Bhumiswami and now the plaintiffs/appellants are in possession of the land in dispute, in the capacity of
Bhumiswami. It was further pleaded that the rights of Roopchand had already extinguished during his lifetime and therefore, none of his legal
representatives has any right or title in the land in dispute. The defendants had filed a civil suit in the year 1959 for declaration of their title, however,
the plaintiffs were not impleaded as party and the decree was obtained by impleading one Motilal as a defendant. It was pleaded that the judgment
and decree passed against Motilal is not binding on the plaintiffs. The plaintiffs have filed the present suit in the light of the direction given by the High
Court. It was further pleaded that Narayan Rao remained in possession of the land in dispute by virtue of ""Patta"" dated 14-5-1945 given by
Superintendent Court of Wards. Thus, the suit was filed for declaration of title and permanent injunction and in the alternative, it was also prayed that
in case, if the Trial Court comes to a conclusion that the plaintiffs are not in possession of the land in dispute, then the decree for possession be
passed.
4. The defendants no. 1 to 3/respondents no. 2 to 4 filed their written statement and pleaded that Narayan Rao was not the Jagirdar but was the
Superintendent, and was in Fiduciary position. The possession of the plaintiffs was denied and it was pleaded that the defendants are in possession of
the same as they have got the same in execution of a valid order. It was pleaded that Roopchand had expired in the year 1936 which was admitted by
the plaintiffs in previous litigations. After the death of Roopchand, his legal representatives are in possession of the land in dispute. It was further
pleaded that the plaint is based on self contradictory pleadings. The land in dispute was never with Court of Wards and was not Jagirdari property, but
was in possession of the agriculturist. It was further pleaded that Narayan Rao had issued ""Patta"" in his favor, which is void and illegal. Narayanrao
was a trespasser. Roopchand died in the year 1936 and he remained in possession of the land in dispute during his lifetime, and thereafter, his legal
representatives are in possession. The possession of Narayanrao was declared illegal. Several litigations took place between the plaintiffs and the
defendants, and accordingly under Section 86(3), the possession was delivered to the defendants. The defendants were compelled to file a suit against
one Motilal for getting their names mutated in the revenue records and in the said suit, the defendants were declared to be the Bhumiswami. The
plaintiffs cannot challenge the judgment and decree passed in favour of the defendants. Since, the possession of Narayanrao was illegal and void and
his status was that of a trespasser, therefore, he was dispossessed by the order of Court, Kurwai and possession was handed over to the defendants.
It was further pleaded that the possession of plaintiffs cannot be treated as Hostile, therefore, they have not perfected their title by adverse
possession.
5. The Trial Court after framing issues and recording evidence, decreed the suit by judgment and decree dated 11-12-1990 passed in C.S. No. 4-
A/1984 and held that the plaintiffs are the title holder and in possession of the land in dispute.
6. The defendants being aggrieved by the judgment and decree passed by the Trial Court, filed an appeal which was registered as C.A. No. 82-A of
1994. The appeal filed by the defendants/respondents no. 2 to 4 was allowed by judgment and decree dated 30-8-1997 passed by 3rd A.D.J., Vidisha
and dismissed the suit filed by the appellants.
7. Being aggrieved by the judgment and decree passed by the Appellate Court, the appellants filed the present appeal. The appeal was dismissed in
limine by order dated 12-5-1999 and it was held that no Substantial Question of Law arises in the appeal.
8. The appellants, being aggrieved by the order of this Court, filed C.A. No. 6199/2001.
9. In the meanwhile, the defendant no. 1-Lalita Prasad also filed a civil suit for declaration of title and recovery of possession which was registered as
C.S. No. 32-A/1996. This suit was filed against 17 persons including the appellants. The C.S. No. 32-A/1996 was filed in respect of total land
admeasuring 183 Bigha and 17 Biswa and the land in dispute was also included in the said suit. Some of the defendants were original ""Patta holder
and some were the successors of ""Original Patta Holders"". The Civil Suit No. 32-A/1996 was filed during the pendency of the Regular Civil Appeal
i.e., after the decree was passed by the Trial Court. However, C.S. No. 32-A/1996 was dismissed by order dated 30-1-1999 passed under Order 7
Rule 11 CPC on the ground that the defendant no. 1 had no right or title in the suit land.
10. The defendant no. 1/respondent no. 2 filed First Appeal No. 53 of 1999 before the High Court, which too was dismissed by order dated 12/5/1999.
11. Being aggrieved by the order dated 12/5/1999, the defendant/respondent no. 2 filed Letters Patent Appeal before the High Court, which was
registered as LPA No. 162 of 1999, which too was dismissed by order dated 12-3-2001.
12. Being aggrieved by the dismissal of the LPA, the defendant no. 1/respondent no. 2 filed Civil Appeal No. 346 of 2004 and the Civil Appeal No.
6199/2001 filed by the appellants/plaintiffs and Civil Appeal No. 346/2004 filed by the defendant/respondent no. 2 were decided by the Supreme Court
by common order dated 10-9-2009 and the C.A. No. 346/2004 filed by the defendant no. 1/respondent no. 2 was dismissed on merits and
consequently, the C.A. No. 6199/2001 filed by the appellants/plaintiffs was allowed and the order dated 12-5-1999 passed by the High Court in the
present appeal was set aside, and the matter has been remanded back to this Court to decide the matter afresh.
13. The present appeal was admitted by this Court by order dated 27-1-2010 on the following Substantial Questions of Law:
1. In view of the fact of Patta dated 14-5-1995 having been tendered in evidence on 9-3-81, whether presumption under Section 90 of the Indian
Evidence Act ought to have been drawn?
2. Whether the sub-tenancy can be held to be proved on the basis of entry in Khasra supported by the Lagan paid?
3. Whether in the facts and circumstances of the case, the plaintiffs are entitled for a decree of declaration of Bhumiswami right and injunction on the
basis of possessory title?
4. Whether dismissal of Civil Suit No. 32A/1996 at the instance of defendants/respondents maintained by the Apex Court would make the
plaintiffs/appellants entitled to decree for perpetual injunction vis-Ã -vis the defendants no. 2 to 4?
14. The defendants have also filed their cross objection and accordingly, the following Substantial Question of Law was framed by this Court by order
dated 10-8-2010:
5. Whether the Civil Court has jurisdiction to hear the cases under the Madhya Bharat Jagir Abolition Act, as under Section 34 of the same Act,
rights conferred by the revenue courts cannot be challenged in Civil Court?
15. I.A. No. 4598 of 2013 has been filed by the respondents/defendants for framing Additional Substantial Questions of Law. The Counsel for the
defendants no. 1 to 3/respondents no. 2 to 4 was requested to read out the cross objection filed by the defendants no. 1 to 3/respondents no. 2 to 4.
After going through the cross objection i.e., I.A. No. 747/1998, it was fairly conceded by the Counsel for the defendants no. 1 to 3/respondents no. 2
to 4, that the Additional Substantial Questions of Law proposed by I.A. No. 4598/2013 are not covered by the Cross Objection. Accordingly, the
Counsel for respondents was asked to argue on the question of maintainability of I.A. No. 4598/2013. However, instead of arguing, it is submitted by
the counsel for the defendants no. 1 to 3/respondents no. 2 to 4, that since, he has filed the application i.e., I.A. No. 4598/2013 and same is before this
Court for its consideration, therefore, the Court may decide the same after going through the provisions of law. Since, the Counsel for the defendants
no. 1 to 3/respondents no. 2 to 4 has not assisted the Court with regard to the maintainability of I.A. No. 4598/2013, therefore, the said application
shall be decided after considering the merits of the case.
16. I.A. No. 2895/2011 has been filed by the defendants no. 1 to 3/respondents no. 2 to 4 under Section 100(5) of C.P.C. This application shall also be
decided after considering the merits of the case.
17. I.A. No. 2540/1999 has been filed by the appellants under Order 7 Rule 7 CPC for taking subsequent events on record. This application shall also
be decided after considering the merits of the case.
18. It is submitted by the Counsel for the appellants, that first of all, the Substantial Question of Law No. 4 may be decided, therefore, he may be
permitted to argue on the said Substantial Question of Law only, and in case, if it is found that the present case is not barred by Res-judicata in the
light of judgment passed by the Supreme Court, then he may be heard on the remaining Substantial Questions of Law.
19. However, the submission made by the Counsel for the appellants was vehemently opposed by the Counsel for the defendants no. 1 to
3/respondents no. 2 to 4 and he submitted that the appellants are not the title holder and are not entitled to remain in possession of the land in dispute,
therefore, he insisted that he should be heard on merits also. However, in reply to the specific query raised by this Court, it was conceded by the
Counsel for the defendants no. 1 to 3/respondents no. 2 to 4 that the judgment passed by the Supreme Court in C.A. No. 346/2004 is binding on this
Case. However, it is submitted that the said judgment would not amount to Res-judicata because the suit filed by the defendant/respondent no. 2 was
dismissed under Order 7 Rule 11 C.P.C. and there was no adjudication of rights on merits. It is further submitted that this Court while deciding this
appeal must consider the findings recorded by this Court by order dated 12-5-1999 (The order which has already been set aside by the Supreme Court
in CA No. 6199/2001). When this Court raised a query that when the order dated 12-5-1999 has already been set aside by the Supreme Court, then
how this Court can consider the findings recorded in the said order, then it was replied by the Counsel for the defendants no. 1 to 3/respondents no. 2
to 4, that it appears that this Court is not inclined to hear the matter on merits. Looking to the replies which were being given by the Counsel for the
defendants no. 1 to 3/respondents no. 2 to 4, this Court decided not to put any further question to the Counsel for the defendants no. 1 to
3/respondents no. 2 to 4. It is submitted by the Counsel for the defendants no. 1 to 3/respondents no. 2 to 4 that Sections42, 193, 252, 253, 258, 315
and 316 of Quanoon Mal, Gwalior Samvat 1983 would apply, which reads as under:
20. It is further submitted that as per Section 288 of Dharamshastra, the defendants no. 1 to 3/respondents no. 2 to 4 are at serial no. 15, therefore,
they are entitled to inherit the property of Roopchand. Section 288 of Dharamshastra reads as under:
21. There is a difference between the Courts of Ward and Superintendent. It is further submitted that Roopchand had died in the year 1936, whereas
the plaintiffs/appellants have relied upon the documents which were prepared in the year 1937 by projecting that Roopchand was alive, therefore, it is
clear that the plaintiffs/appellants have prepared and relied upon forged documents. It is further submitted that Narayanrao was not the Jagirdar, but
he was the Superintendent, therefore, he could not have issued a ""patta"" in his favour.
22. Heard the learned Counsel for the parties.
23. It is fairly conceded by the Counsel for both the parties, that the record of C.S. No. 32-A/1996 filed by the defendant no. 1 is not on record,
however, it is submitted by the Counsel for the appellants, that in the judgment of the appellate Court, the fact of filing of suit by the defendant no.
1/respondent no. 2 is mentioned.
24. Since, this matter has been remitted back by the Supreme Court by common order dated 10-9-2009, by which the C.A. No. 346/2004 filed by the
defendant no. 1/respondent no. 2 was dismissed and the C.A. No. 6199/2001 filed by the appellants was allowed, therefore, the records of F.A. No.
53/1999 and LPA No. 162 of 1999 were summoned from the Registry. Since the perusal of these record is necessary for answering the Substantial
Question of Law No. 4, therefore, at the time of the hearing, the records of both the cases i.e., F.A. No. 53 of 1999 and LPA No. 162/1999 were
perused with the consent of both the parties.
25. Substantial Question of Law No. 4 : Whether dismissal of Civil Suit No. 32A/1996 at the instance of defendants/respondents maintained by the
Apex Court would make the plaintiffs/appellants entitled to decree for perpetual injunction vis-Ã -vis the defendants no. 2 to 4?
26. It is not out of place to mention here that although only defendant no. 1/respondent no. 2 had filed the C.S. No. 32-A/1996, but the defendants no.
2 and 3/respondents no. 3 and 4 are also claiming their right in the property, being the son of sister of Roopchand.
27. It is submitted by the Counsel for the appellants/plaintiffs, that since, the C.S. No. 32-A/1996 filed by the defendant no. 1/respondent no. 2 for
declaration of their title and recovery of possession was dismissed and the said order was upheld upto the Supreme Court, therefore, it is clear that the
defendants/respondents no. 2 to 4 have no right to interfere with the peaceful possession of the plaintiffs/appellants.
28. Per contra, it is submitted by the Counsel for the defendants/respondents no. 2 to 4, that since, the Civil Suit No. 32-A/1996 was dismissed under
Order 7 Rule 11 C.P.C., therefore, there was no adjudication on merits, therefore, the orders passed in Civil suit as well as in the Appeals arising out
of the said Civil Suit would not apply as Res-judicata.
29. To consider the submissions made by the Counsel for the parties, this Court thinks it apposite to consider that whether the principle of Res-judicata
would apply or not?
30. The Supreme Court in the case of K. Ethirajan v. Lakshmi, reported in: (2003) 10 SCC 578 has held as under:
20. The argument that the principle of res judicata cannot apply because in the previous suit only a part of the property was involved when in the
subsequent suit the whole property is the subject-matter, cannot be accepted. The principle of res judicata under Section 11 of the Code of Civil
Procedure is attracted where issues directly and substantially involved between the same parties in the previous and subsequent suit are the same,
maybe, in the previous suit only a part of the property was involved when in the subsequent suit, the whole property is the subject-matter.
The Supreme Court in the case of Union of India v. Nanak Singh reported in: AIR 1968 SC 1370 has held as under:
6. If the order of the High Court in appeal from the order in the writ petition operated constructively as res judicata, it might have been necessary to
consider the question which was left open by the Court in Gulabchand case. But in our view the judgment in the previous case operates by express
decision as res judicata. It is true that in order that the previous adjudication between the parties may operate as res judicata, the question must have
been heard and decided or that the parties must have an opportunity of raising their contentions thereon.
The Supreme Court in the case of Raj Lakshmi Dasi v. Banamali Sen reported in: AIR 1953 SC 33 has held as under:
13. In order successfully to establish a plea of res judicata or estoppel by record it is necessary to show that in a previous case a court, having
jurisdiction to try the question, came to a decision necessarily and substantially involving the determination of the matter in issue in the later case. It
was at one time a matter of doubt whether the determination of a court to which a matter had been referred by the collector was such a decision and
that doubt was resolved by the judgment of the Privy Council in Ramachandra Rao v. Ramachandra Rao, which decided that where a dispute as to
the title to receive the compensation had been referred to the court, a decree thereon not appealed from renders the question of title res judicata in a
suit between the parties to the dispute. In that case it was observed as follows:
The High Court appear only to have regarded the matter as concluded to the extent of the compensation money, but that is not the true view of what
occurred, for, as pointed in Badar Bee v. Habib Merican Noordin it is not competent for the court, in the case of the same question arising between
the same parties, to review a previous decision no longer open to appeal, given by another court having jurisdiction to try the second case. If the
decision was wrong, it ought to have been appealed from in due time. Nor in such circumstances can the interested parties be heard to say that the
value of the subject-matter on which the former decision was pronounced was comparatively so trifling that it was not worth their while to appeal
from it. If such a plea were admissible, there would be no finality in litigation. The importance of a judicial decision is not to be measured by the
pecuniary value of the particular item in dispute. It has been suggested that the decision was not in a former suit, but whether this were so or not
makes no difference, for it has been recently pointed out by this Board in Hook v. Administrator-General of Bengal that the principle which prevents
the same matter being twice litigated is of general application, and is not limited by the specific words of the Code in this respect.
In Bhagwati v. Bam Kali an issue was decided in favour of B in a land acquisition proceeding that she was entitled to the whole of the compensation
money. In a subsequent suit by another widow, who was also a claimant in the land acquisition proceedings, for a declaration that she was entitled to a
half share in the estate inherited by her husband and his brothers, it was held that her suit was barred by the rule of res judicata, the District Judge
having in the previous proceeding decided that she had no title to the land. In that case part of the property in dispute was acquired under the Land
Acquisition Act and the Collector by his award apportioned the compensation between the widows in equal shares. Both the widows raised the
question of title to the compensation. The objections were referred under the Act to the District Judge and the District Judge on the issue as to
whether Bhagwati was entitled to the entire compensation or whether Ram Kali was entitled to a half, found in favour of Bhagwati. Ram Kali then
brought a suit against Bhagwati for a declaration of her right to a half share of the whole of the property inherited by the brothers and their mother.
The Subordinate Judge held that the suit was barred by res judicata by the decision of the District Judge in the reference under the Land Acquisition
Act. The High Court reversed this decision holding that Ram Kali's title was not the subject-matter of the reference to the District Judge and he was
not therefore competent to try it. The Privy Council reversed this decision and held that the District Judge did determine the question of the ownership
and his decision was binding upon the parties and the-matter was res judicata.
14. These two decisions, in our opinion, are conclusive on the point of res judicata raised in the present case and in these circumstances it has to be
held that the question of title to the four annas share was necessarily and substantially involved in the land acquisition proceedings and was finally
decided by a court having jurisdiction to try it and that decision thus operates as res judicata and estops the Sens and the mortgagees from re-agitating
that matter in this suit. We are not now concerned with the question whether the Privy Council was right or wrong.
This Court in the case of Sunderabai v. Devaji, reported in: AIR 1954 SC 82 has held as under:
11. The real ratio governing such class of cases is to be found in a decision of the Full Bench of the Lahore High Court in Mt Sardaran v. Shiv Lal
where it was held that where the right claimed in both suits is the same the subsequent suit would be barred as res judicata though the right in the
subsequent suit is sought to be established on a ground different from that in the former suit.
The Supreme Court in the case of Kunjan Nair Sivaraman Nair v. Narayanan Nair reported in: (2004) 3 SCC 277 has held as under:
11. Rule of res judicata is contained in Section 11 of the Code. Bereft of all its explanations, namely, Explanations I to VIII, Section 11 is quoted
below:
11. Res judicata.-No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue
in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court
competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such
court.
12. ""Res judicata pro veritate accipitur"" is the full maxim which has, over the years, shrunk to mere ""res judicata"".
13. Section 11 contains the rule of conclusiveness of the judgment which is based partly on the maxim of Roman jurisprudence ""interest reipublicae ut
sit finis litium"" (it concerns the State that there be an end to law suits) and partly on the maxim ""nemo debet bis vexari pro una et eadem causa"" (no
man should be vexed twice over for the same cause). The section does not affect the jurisdiction of the court but operates as a bar to the trial of the
suit or issue, if the matter in the suit was directly and substantially in issue (and finally decided) in the previous suit between the same parties litigating
under the same title in a court, competent to try the subsequent suit in which such issue has been raised.
14. The above position was noted in Deva Ram v. Ishwar Chand.
The Supreme court in the case of Ferro Alloys Corpn. Ltd. v. Union of India,: (1999) 4 SCC 149, at page 166:
28. ............... In this connection, it would be profitable to refer to a decision of this Court in the case of Iftikhar Ahmed v. Syed Meharban Ali dealing
with the principle of res judicata which obviously would include also the question of constructive res judicata between the co-defendants. K.K.
Mathew, J., speaking for the Court in that case made the following pertinent observations: (SCC p. 155, paras 13-15)
13. Now it is settled by a large number of decisions that for a judgment to operate as res judicata between or among co-defendants, it is necessary to
establish that (1) there was a conflict of interest between co-defendants; (2) that it was necessary to decide the conflict in order to give the relief
which the plaintiff claimed in the suit; and (3) that the Court actually decided the question.
14. In Chandu Lal Agarwalla v. Khalilur Rahaman Lord Simonds said:
'It may be added that the doctrine may apply even though the party, against whom it is sought to enforce it, did not in the previous suit think fit to enter
an appearance and contest the question. But to this the qualification must be added that, if such a party is to be bound by a previous judgment, it must
be proved clearly that he had or must be deemed to have had notice that the relevant question was in issue and would have to be decided.'
15. We see no reason why a previous decision should not operate as res judicata between co-plaintiffs if all these conditions are mutatis mutandis
satisfied. In considering any question of res judicata we have to bear in mind the statement of the Board in Sheoparsan Singh v. Ramnandan Prasad
Narayan Singh that the rule of res judicata 'while founded on ancient precedent is dictated by a wisdom which is for all time' and that the application
of the rule by the courts 'should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law'.
'The raison d'etre of the rule is to confer finality on decisions arrived at by competent courts between interested parties after genuine contest; and to
allow persons who had deliberately chosen a position to reprobate it and to blow hot now when they were blowing cold before would be completely to
ignore the whole foundation of the rule.' (See Ram Bhaj v. Ahmad Said Akhtar Khan.)
The Supreme court in the case of Gulam Abbas v. State of U.P.,: (1982) 1 SCC 71, at page 90:
14. Counsel for Respondents 5 and 6 next contended that the decision in this litigation (Suit No. 232 of 1934) would not operate as res judicata against
them or the Sunni community of Mohalla Doshipura inasmuch as Munsiff's Court at Benaras did not have either pecuniary or subject-wise jurisdiction
to grant the reliefs claimed in the instant writ petition; in other words that Court was not competent to decide the present subject-matter and as such
the bar of res judicata under Section 11 of the Civil Procedure Code, 1908 was not attracted, and it would be open to Respondents 5 and 6 and the
members of the Sunni community to agitate question of title either to the plots or to the structures thereon or even the Shias' entitlement to their
customary rights over them. In support of this contention counsel relied on two decisions, namely. Rajah Run Bahadoor Singh v. Lachoo Koer and
Gulab Bai v. Manphool Bai. It is not possible to accept this contention for the reasons which we shall presently indicate. It is well settled that Section
11 CPC is not exhaustive of the general doctrine of res judicata and though the rule of res judicata as enacted in Section 11 has some technical
aspects the general doctrine is founded on considerations of high public policy to achieve two objectives, namely, that there must be a finality to
litigation and that individuals should not be harassed twice over with the same kind of litigation. In Daryao v. State of U.P. this Court at SCR p. 582
has observed thus:
Now, the rule of res judicata as indicated in Section 11 of the Code of Civil Procedure has no doubt some technical aspects, for instance, the rule of
constructive res judicata may be said to be technical; but the basis on which the said rule rests is founded on considerations of public policy. It is in the
interest of the public at large that a finality should attach to the binding decisions pronounced by courts of competent jurisdiction, and it is also in the
public interest that individuals should not be vexed twice over with the same kind of litigation.
Reference in this connection was made by the Court to the famous decision in the leading Duchess of Kingston case, Halsbury's Laws of England and
Corpus Juris. In Gulabchand Chhotalal Parikh v. State of Bombay (now Gujarat) the question was whether after the dismissal of a writ petition on
merits after full contest by the High Court under Article 226 of the Constitution a subsequent suit raising the same plea claiming discharge from the
liability on the same ground was entertainable or not and this Court held that on general principles of res judicata the decision of the High Court on the
writ petition operated as res judicata barring the subsequent suit between the same parties with respect to the same matter. On a review of entire
case-law on the subject, including Privy Council decisions, this Court at SCR p. 574 observed thus:
As a result of the above discussion, we are of opinion that the provisions of Section 11, CPC are not exhaustive with respect to an earlier decision
operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit and that on the general principle of
res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their
case by a court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not necessary that the Court deciding the matter
formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject-matter. The nature
of the former proceeding is immaterial.
We do not see any good reason to preclude such decisions on matters in controversy in writ proceedings under Article 226 or 32 of the Constitution
from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect
to the principle of the finality of decisions after full contest.
(emphasis supplied)
The above observations were approved by this Court in a subsequent decision in the case of Union of India v. Nanak Singh. It is thus clear that
technical aspects of Section 11 of CPC, as for instance, pecuniary or subject-wise competence of the earlier forum to adjudicate the subject-matter or
grant reliefs sought in the subsequent litigation would be immaterial when the general doctrine of res judicata is to be invoked. The two decisions relied
upon by counsel for Respondents 5 and 6 were directly under Section 11 of CPC. Even under Section 11 the position has been clarified by inserting a
new Explanation VIII in 1976. It was not disputed that the Munsiff's Court at Benaras was competent to decide the issues that arose for
determination before it in earlier litigation and, therefore, the decision of such competent court on the concerned issues must operate as a bar to any
subsequent agitation of the same issues between the same parties on general principles of res judicata. The contention raised by counsel for
Respondents 5 and 6 in this behalf, therefore, has to be rejected. It was then faintly urged by counsel for Respondents 5 and 6 that the dismissal of
plaintiffs' suit (No. 232 of 1934) would not confer any rights on the Shia community who were party defendants to the suit. The contention is merely
required to be stated to be rejected. Not only were the Sunnis' customary rights (specified in para 4 of the Plaint) over the plots and structures in
question put in issue during the trial but the customary rights to perform their religious ceremonies and functions on the plots and structures thereon
claimed by the Shias were also directly and substantially put in issue inasmuch as the plaintiffs (Sunni Muslims) had sought an injunction restraining the
Shias from exercising their customary rights. Therefore, the decision in this litigation which bore a representative character not merely negatived the
Sunnis' customary rights claimed by them over the plots and structures but adjudicated, determined and declared the Shias entitlement to their
customary rights to perform their religious ceremonies and functions on the plots and structures thereon in question and this decision is binding on both
the communities of Mohalla Doshipura. There is no question of there being any gap or inadequacy of the material on record in the matter of proof of
Shias' entitlement to customary rights over the plots and structures in question, whatever be the position as regards their title to the plots or structures.
We have already indicated that this decision even upholds their title to two main structures, Zanana Imambara and Mardana Imambara (Baradari). In
our view, therefore, this is a clear case of an existing or established entitlement to the customary rights in favour of the Shias' community to perform
their religious ceremonies and functions over the plots and structures in question under the decree of competent civil court for the enforcement of
which the instant writ petition has been filed.
The Supreme court in the case of Ramchandra Dagdu Sonavane v. Vithu Hira Mahar,: (2009) 10 SCC 273 : (2009) 4 SCC (Civ) 162, at page 288:
Res judicata and the Code of Civil Procedure
42. It is well known that the doctrine of res judicata is codified in Section 11 of the Code of Civil Procedure. Section 11 generally comes into play in
relation to civil suits. But apart from the codified law, the doctrine of res judicata or the principle of res judicata has been applied since long in various
other kinds of proceedings and situations by courts in England, India and other countries. The rule of constructive res judicata is engrafted in
Explanation IV of Section 11 of the Code of Civil Procedure and in many other situations also principles not only of direct res judicata but of
constructive res judicata are also applied, if by any judgment or order any matter in issue has been directly and explicitly decided, the decision operates
as res judicata and bars the trial of an identical issue in a subsequent proceedings between the same parties.
43. The principle of res judicata comes into play when by judgment and order a decision of a particular issue is implicit in it, that is, it must be deemed
to have been necessarily decided by implications even then the principle of res judicata on that issue is directly applicable. When any matter which
might and ought to have been made a ground of defence or attack in a former proceeding but was not so made, then such a matter in the eye of the
law, to avoid multiplicity of litigation and to bring about finality in it, is deemed to have been constructively in issue and, therefore, is taken as decided.
(See Workmen v. Cochin Port Trust.)
44. In Swamy Atmananda v. Sri Ramakrishna Tapovanam it was held by this Court: (SCC p. 61, paras 26-27)
26. The object and purport of the principle of res judicata as contended in Section 11 of the Code of Civil Procedure is to uphold the rule of
conclusiveness of judgment, as to the points decided earlier of fact, or of law, or of fact and law, in every subsequent suit between the same parties.
Once the matter which was the subject-matter of lis stood determined by a competent court, no party thereafter can be permitted to reopen it in a
subsequent litigation. Such a rule was brought into the statute book with a view to bring the litigation to an end so that the other side may not be put to
harassment.
27. The principle of res judicata envisages that a judgment of a court of concurrent jurisdiction directly upon a point would create a bar as regards a
plea, between the same parties in some other matter in another court, where the said plea seeks to raise afresh the very point that was determined in
the earlier judgment.
45. When the material issue has been tried and determined between the same parties in a proper suit by a competent court as to the status of one of
them in relation to the other, it cannot be again tried in another suit between them as laid down in Krishna Behari Roy v. Brojeswari Chowdranee
which is followed by this Court in Ishwar Dutt v. Collector (LA) wherein the doctrine of ""cause of action estoppel"" and ""issue estoppel"" has been
discussed. It is laid down by this Court that if there is an issue between the parties that is decided, the same would operate as a res judicata between
the same parties in the subsequent proceedings. This Court in Isher Singh v. Sarwan Singh has observed: (AIR p. 951, para 11)
11. We thus reach the position that in the former suit the heirship of the respondents to Jati deceased (a) was in terms raised by the pleadings, (b)
that an issue was framed in regard to it by the trial Judge, (c) that evidence was led by the parties on that point directed towards this issue, (d) a
finding was recorded on it by the appellate court, and (e) that on the proper construction of the pleadings it would have been necessary to decide the
issue in order to properly and completely decide all the points arising in the case to grant relief to the plaintiff. We thus find that everyone of the
conditions necessary to satisfy the test as to the applicability of Section 11 of the Civil Procedure Code is satisfied.
46. So far as the finding drawn in the suit for injunction in OS No. 104 of 1953 regarding adoption would also operate as a res judicata in view of the
judgment of this Court in Sulochana Amma v. Narayanan Nair. It is observed:
The decision in earlier case on the issue between the same parties or persons under whom they claim title or litigating under the same title, it operates
as a res judicata. A plea decided even in a suit for injunction touching title between the same parties, would operate as res judicata.
9. ... It is settled law that in a suit for injunction when title is in issue for the purpose of granting injunction, the issue directly and substantially arises in
that suit between the parties. When the same issue is put in issue in a later suit based on title between the same parties or their privies in a subsequent
suit the decree in the injunction suit equally operates as res judicata."" (SCC p. 20, para 9)
47. The same view is reiterated in Gram Panchayat v. Ujagar Singh. This Court has stated that even in an earlier suit for injunction, if there is an
incidental finding on title, the same will not be binding in the later suit or proceedings 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 found or based
on the bindings of title. Even the mere framing of an issue may not be sufficient as pointed out in that case.
48. The appellants had filed OS No. 104 of 1953 before the civil court inter alia seeking an order of permanent injunction against respondent Vithu and
others on the ground that they are watandars of suit lands and they are in peaceful possession and enjoyment of the suit lands. Respondent Vithu had
set up a defence that since he is the adopted son of the deceased watandar, he has the right, title and interest in the watanlands. Therefore, the trial
court had framed an issue, whether the defendants prove that Defendant 1 was the adopted son of his grandmother and as such was in possession of
the suit property. The trial court after elaborate discussion had answered the issue against Vithu and had concluded that Vithu failed to prove that he
was the adopted son of deceased watandar and, therefore, he cannot have any right, title or interest in the suit lands as watandar. In this case, though
the suit was for bare injunction, title to the properties was put on issue by the defendant Vithu claiming that he is the adopted son of deceased
watandar and, therefore, he has watandari rights in the suit lands. In order to decide the prayers made in the suit, the issue of adoption had to be
decided. The issue falls within the exclusive jurisdiction of the civil court.
49. In the subsequent proceedings before the Sub-Divisional Officer, the issue was whether Vithu was the adopted son of the deceased watandar and,
therefore, having hereditary interest in any inferior village watan under the Watans Abolition Act, 1958. To decide this issue, the Sub-Divisional
Officer firstly has to decide the issue, whether Vithu is the adopted son of the deceased watandar. This issue is one which does not fall within the
jurisdiction of the Revenue Court but falls within the exclusive jurisdiction of the civil court. Since the issue of adoption was already decided between
the same parties by a competent civil court, the Sub-Divisional Officer cannot decide that issue and without giving any decision on that issue could not
have allowed the claim of the respondent Vithu. Therefore, in our opinion, the principles of res judicata would apply to the proceedings before the Sub-
Divisional Officer.
50. In a suit for injunction, the issues and the decision would be confined to possessory aspect. If the right to possession of property cannot be decided
without deciding the title to the property and a person who approaches the court, his status itself is to be adjudicated then without declaring his status,
the relief could not be granted. In the earlier suit Vithu claimed his right as an adopted son. Therefore, since he did not prove the adoption, there was
no subsisting right or interest over the immovable property and as such the issue on adoption was a relevant issue in the 1953 suit and, therefore, the
said issue which has been decided in the earlier suit and which has been confirmed in the regular second appeal and the issue decided therein was
whether he was an adopted heir of a deceased watandar was binding on the parties. A similar question has to be decided by the SDO to decide the
claim, right or interest in respect of the hereditary office. Therefore, the issue was raised and it was decided and it is binding on the parties.
51. Reference may be made to the decision of this Court in Sulochana Amma v. Narayanan Nair (SCC para 9) on the issue between the same parties
or persons under whom they claim title or litigating under the same title, it operates as a res judicata. A plea decided even in a suit for injunction
touching the title between the same parties would operate as res judicata: (SCC p. 20, para 9)
9. ... It is settled law that in a suit for injunction when title is in issue for the purpose of granting injunction, the issue directly and substantially arises in
that suit between the parties. When the same issue is put in issue in a later suit based on title between the same parties or their privies in a subsequent
suit the decree in the injunction suit equally operates as res judicata.
52. To the same effect is the judgment of this Court in Sulochana Amma v. Narayanan Nair (SCC para 9) in which it has been held that the issue
between the same parties or persons under whom they claim title or litigating under the same title, it operates as a res judicata. A plea decided even in
a suit for injunction touching the title between the same parties would operate as res judicata.
53. The learned Senior Counsel Shri Naphade by placing reliance on the observation made by this Court in Syed Mohd. Salie Labbai v. Mohd. Hanifa,
that the best method to decide the question of res judicata is first to determine the case of parties as put forward in their respective pleadings of their
previous suits and then to find out as to what had been decided by the judgments which operate as res judicata. It is the contention of the learned
Senior Counsel that the pleadings of the suit of 1953 were not available to the civil court while deciding the second suit of 1979 and, therefore, the
High Court was justified in holding that the finding of the civil court in the second suit of 1979 and the appellate court against that order regarding res
judicata cannot be upheld.
54. In Syed Mohd. case, this Court has stated that before a plea of res judicata can be given effect to the four conditions are required to be proved.
They are, that the litigating parties must be the same; that the subject-matter of the suit also must be identical; that the matter must be finally decided
between the parties; and that the suit must be decided by a court of competent jurisdiction. This Court while analysing those conditions as matter of
fact found that the parties had not even filed the pleading of the suits instituted by them. In that factual scenario, this Court had to observe that the
pleadings cannot be proved merely by recitals of the allegations mentioned in the judgment.
31. Thus, it is clear that for application of doctrine of Res-judicata, the following four conditions are required to be satisfied:
1. The litigating parties should be same or between parties under whom they are any of them claim, litigating under the same title;
2. the issue must be directly and substantially in issue in the previous suit;
3. the matter must be heard and finally decided between the parties; and,
4. the Suit must have been decided by a Court of competent jurisdiction.
32. In the present case, although the suit filed by the defendant/respondent no. 2 was subsequent in time, but the same was decided by the Supreme
Court by a common order dated 10-9-2009 passed in CA No. 346/2004 and CA No. 6199/2001. Therefore, the final adjudication of the subsequently
filed suit can be treated as findings having attained finality in a previously decided suit. Undisputedly, the litigating parties in both the suit were same
although in the suit filed by the defendant/respondent no. 2, some more defendants were impleaded for the reason, that the said suit was filed in
respect of entire land i.e., 183 bigha and 17 Bigha, whereas the present suit has been filed by the appellants in respect of only 44 Bigha and 1 Biswa
of land which was also part of the subject-matter of the suit filed by the defendant/respondent no. 2.
33. In the suit filed by the defendant/respondent no. 2, the question directly involved was that whether the defendant/respondent no. 2 has any title
over the land in dispute or not and the said question is also directly and substantially involved in the present case also.
34. Now, the only question for consideration is that when the suit filed by the defendant/respondent no. 2 was dismissed under Order 7 Rule 11 CPC,
then whether it can be said that the suit filed by the defendant/respondent no. 2 was decided on merits, after giving full opportunity of hearing to both
the parties? In order to find out that whether the rights of the parties were finally determined in the suit filed by the defendant no. 1\respondent no. 2
or not, it would be necessary to consider the findings recorded by the Trial Court, while dismissing the suit of the defendant no. 1\respondent no. 2
under Order 7 Rule 11 CPC.
35. The copy of the order dated 30-1-1999 passed in C.S. No. 32-A/1996 reads as under:
36. Thus, it is clear that the suit filed by the defendant/respondent no. 2 was not dismissed on any technical ground, but a specific finding was recorded
that since, the son of Late Roopchand was alive, therefore, as per Section 253 of Quanoon Mal, Gwalior, Samvat 1983, the plaintiffs who were the
sons of sister of Late Roopchand would not inherit the property. Thus, it was specifically held that the defendant/respondent no. 2 had no right or title
in the property in dispute. Further it is clear from Section 253 of Quanoon Mal, Gwalior Samvat 1983 as well as Section 288 of Dharamshastra, the
son of would inherit the property of his father, and if the deceased is not survived by his son, then the property would go to other persons, in
accordance with the provisions of Quanoon Mal, Gwalior or Dharamshastra.
37. The FA No. 53/1999, which was filed by the defendant/respondent no. 2 was dismissed by order dated 12-5-1999 and following observations were
made:
Under the Quanoon Mal, Gwalior, Sister's son is not entitled to inherit the property.
The plaintiff being sister's son had no right, title or interest in the property as he could not inherit the property. He cannot claim property through his
mother.
The Trial Court has not committed any error in rejecting the plaint.
38. The LPA No. 162 of 1999 was decided by judgment dated 12-3-2001, wherein it has been observed as under:
21. Taking into consideration the facts and circumstances noticed in the judgment by the trial court as well as the learned single judge and also the
facts in regard to which there is no dispute which have been noticed hereinabove. We are not satisfied that any sufficient ground has been made out
for interference in the impugned order.
39. The Supreme Court while dismissing the CA No. 346 of 2004 by order dated 10-9-2009 has held as under:
Mr. Shiv Pujan Singh, the learned Counsel for the appellant has, however, argued that in the plaint itself it had been averred in the alternative that the
land in question would be covered by the Ryotwari and therefore, it was incumbent on the trial court and other courts to have given a finding as to
which the two Acts that had been referred to in the plaint would be applicable to teh matter and this is a matter for trial.
We find from the order of the trial court that the fact that the dispute would be covered by the Quanoon Mal of Gwalior State was not disputed by the
appellants. This appears to be so because in the earlier litigation referred to above, finding that the Quanoon Mal of Gwalior State would be applicable
to the property in dispute had been affirmed right upto this Court. In this view of the matter, are are of the opinion that no interference is called for.
Therefore, the appeal is dismissed.
40. Thus, it is clear that although the suit filed by the defendant/respondent no. 2 was dismissed under Order 7 Rule 11 C.P.C., but the same was
dismissed on the ground that no cause of action has arisen in favor of the defendant/respondent no. 2, because he has no right in the property in
dispute for the reason the defendant/respondent no. 2 cannot claim through his mother, specifically when the son of Roopchand was alive and as per
the provisions of Section 253(1) of Quanoon Mal, Gwalior Samvat 1983, only the son could have inherited the property of Late Roopchand.
41. Thus, it is held that the suit filed by the defendant/respondent no. 2 was decided on merits, thereby determining the rights of the defendant no. 1
finally.
42. So far as the competency of the Court which had dismissed the Suit filed by the defendant/respondent no. 2 is concerned, the same has not been
challenged.
43. Thus, it is clear that the C.S. No. 32-A/1996 which was filed by the defendant/respondent no. 2 was between the same litigating parties, and the
rights of the defendant/respondent no. 2 were finally adjudicated. Further, it was held that as the son of Late Roopchand was alive on the date of
death of Roopchand, therefore, the defendant no. 1/respondent no. 2 cannot claim his right through his mother, who is the sister of Roopchand,
because in the light of Section 253 of Quanoon Mal, State of Gwalior, first of all, the son would inherit the property and not the sons of the sister of the
deceased. Further, not only the subject-matter of both the suits is identical, but C.S. No. 32-A/1996 filed by the defendant/respondent no. 2 was
dismissed by the Court of competent jurisdiction. Since, the Supreme Court has decided C.A. No. 346/2004 on merits, therefore, it is held that the
orders passed by the Trial Court, as well as by this Court have merged in the order dated 10-9-2009 passed by the Supreme Court. Thus, it is held that
the order dated 10-9-2009 passed by the Supreme Court is binding on the parties and thus, the findings that the defendant/respondent no. 2 does not
have any right, title or interest in the property in dispute cannot be reagitated in the present appeal.
44. It is next contended by the Counsel for the defendants no. 1 to 3/respondents no. 2 to 4, that although in the suit filed by the defendant/respondent
no. 2, the Court has already held that the defendant/respondent no. 2 does not have any right, title or interest, but the said findings would not mean,
that the appellants/plaintiffs have any right, title or interest in the property in dispute.
45. Considered the submission made by the Counsel for the defendants no. 1 to 3/respondents no. 2 to 4.
46. It appears that initially, the State of M.P. was not impleaded as defendants in the present suit for the reason, that the appellants/plaintiffs had
claimed that the land in dispute, does not exceed the ceiling limits. Lateron, by amendment, the State of M.P. was impleaded and it was specifically
mentioned that although the land in dispute does not exceed the ceiling limits, but still the State of M.P. is being impleaded, however, no relief is being
sought against it. Thus, it is clear that the contesting parties in the present case are the appellants/plaintiffs and the defendants no. 1 to 3/respondents
no. 2 to 4, and not the State of M.P./defendant no. 4/respondent no. 1. Therefore, this Court is of the considered opinion, that although the State of
M.P. was impleaded as a party, but in view of the fact that the appellants/plaintiffs had specifically stated that they have not claimed any relief against
the State of M.P., and in fact State of M.P. was impleaded as a formal party, therefore, the judgment in the present case would not be binding on the
State of M.P. It is further held that the judgment passed in the present case will not be a judgment in rem, but it is a judgment in personam. Therefore,
the contention raised by the Counsel for the defendants no. 1 to 3/respondents no. 2 to 4 that merely because the defendants no. 1 to 3/respondents
no. 2 to 4 have no right or title or interest in the property, therefore, the appellants/plaintiffs would not automatically become the owner of the land in
dispute, cannot be accepted, because once, it is held that the defendant/respondent no. 2 does not have any right, title or interest in the property in
dispute, then the defendants no. 1 to 3/respondents no. 2 to 4 do not have any right to interfere with the peaceful possession of the appellants/plaintiffs.
However, it is once again held that the judgment passed in the present case, would be binding on the appellants/plaintiffs and the defendants no. 2 to 4
only and the judgment cannot be treated as Judgment in rem against any other person, including the State.
47. Further, the defendant/respondent no. 2, had filed the C.S. No. 32-A/1996 and had claimed the decree for possession. Thus, it is clear that the
defendant/respondent no. 2, himself had admitted that defendants no. 1 to 3/respondents no. 2 to 4 are not in possession of the land in dispute. Now
the question is that whether the defendants no. 1 to 3/respondents no. 2 to 4 can still interfere with the possession of the appellants/plaintiffs or not?
48. The Supreme Court in the case of S.R. Ejaz v. T.N. Handloom Weavers' Coop. Society Ltd., reported in: (2002) 3 SCC 137 has held as under:
8. 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
U.P. v. Maharaja Dharmander Prasad Singh 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 extra judicially 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.
49. Thus, the Substantial Question of Law that Whether dismissal of Civil Suit No. 32A/1996 at the instance of defendants/respondents maintained by
the Apex Court would make the plaintiffs/appellants entitled to decree for perpetual injunction vis-Ã -vis the defendants no. 2 to 4, is answered in
affirmative, and it is held the appellants/plaintiffs are entitled to decree for perpetual injunction vis-Ã -vis the defendants no. 2 to 4, as they do not have
any right, title or interest to interfere with the peaceful possession of the appellants.
50. Accordingly, the judgment and decree dated 30-8-1997 passed by 3rd Additional District Judge, Vidisha in Civil Appeal No. 82-A of 1994, is
hereby set aside, and it is held that the appellants/plaintiffs are entitled for a decree of permanent injunction against the defendants no. 1 to
3/respondents no. 2 to 4. Accordingly, the defendants no. 1 to 3/respondents no. 2 to 4 are permanently restrained from interfering with the peaceful
possession of the appellants/plaintiffs either by themselves or by their agents.
51. Since, the Substantial Question of Law No. 4 is being answered in affirmative, therefore, in the considered opinion of this Court, it is not necessary
to decide the other Substantial Questions of Law. I.A. No. 4598 of 2013, I.A. No. 2895/2011, are hereby dismissed and I.A. No. 2540/1999 is hereby
allowed.
52. Resultantly, the suit filed by the appellants/plaintiffs is decreed and the decree of permanent injunction is passed against the defendants no. 1 to
3/respondents no. 2 to 4 only.
53. The appeal succeeds and is Allowed accordingly. The decree be drawn.
