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CASE NO.: Appeal (civil)  2894-2895 of 2008

PETITIONER: Williams

RESPONDENT: Lourdusamy & Anr

DATE OF JUDGMENT: 22/04/2008

BENCH: S.B. SINHA & V.S. SIRPURKAR

JUDGMENT: J U D G M E N T REPORTABLE

CIVIL APPEAL NO.2894-2895       OF 2008 (Arising out of SLP (C) Nos. 153-154 of 2007)

S.B. Sinha, J.

1.      Leave granted.

2.      Whether principle of res-judicata is applicable to the facts and  circumstances of this case, is the question involved herein.           The basic fact of the matter is not in dispute.   Second respondent was  the owner of the properties.  He by reason of a registered Deed of Sale dated  25.11.1987 transferred his right, title and interest in favour of the appellant.

3.      First respondent, however, filed a suit against the appellant herein in  the Court of District Munsif, Thiruvaiyaru praying for a decree for  permanent injunction alleging that the land in suit admeasuring 3 cents was  the subject matter of an oral agreement of sale by and between himself and  the second respondent herein.  It was contended that the second respondent  had been in possession of the said land in terms of a patta executed under the  Kudiyiruppu Act being Act 40 of 1971.  

       The contention of the appellant, on the other hand, was that he had  been put in possession of the suit land by the second respondent in terms of  the aforementioned deed of sale dated 25.11.1987.    

4.      The learned Trial Judge in the said suit, inter alia framed the  following issues. "i)     Whether on the date of the suit the plaintiff was in  possession of the suit property?

ii)     Whether the plaintiff is entitled to the relief of permanent  injunction as prayed for?

iii)    To what else (sic) relief, the plaintiff is entitled to?"

5.      The question as to whether the respondent had been put in possession  in terms of an oral agreement of sale was not in issue.   Respondent No. 2 as  noticed hereinbefore was not impleaded as a party.   A decree for specific  performance of contract was not prayed for in the said suit.  Neither any  averment was made nor in law the same could be made that he had been put  in possession by way of a part performance of contract as envisaged under  Section 53A of the Transfer of Property Act.

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6.      The learned Trial Judge, however, held that the first respondent was in  possession of the land in suit as on the date of the institution of the suit and  thus granted a decree for permanent injunction.

7.      Appellant thereafter filed a suit for declaration of title and recovery of  possession, which was marked as O.S. No. 182 of 1989. Both the  respondents herein were impleaded their as parties therein.   First respondent  herein also filed a suit for specific performance of contract against the  appellant as also the respondent No. 2.   The said suit was registered as O.S.  No. 93 of 1990.  Both O.S. No. 182 of 1989 and O.S. No. 93 of 1990 were  consolidated.  By a judgment and order dated 7.11.1990, the learned Trial  Judge while dismissing the aforementioned suit for specific performance of  contract filed by the first respondent allowed the suit of the appellant for  declaration of his title and confirmation of possession. 8.      Two appeals were preferred thereagainst by the first respondent which  by reason of a judgment and order dated 28.8.1991 were dismissed by  District Judge, Thanjavur (West).   First respondent preferred two second  appeals before the High Court.           The High Court opined that the only substantial question of law raised  by the appellant before it (respondent No. 1 herein) was the applicability of  the principles of Res-Judicata.  

       Relying upon some stray observations made by the learned Trial  Judge in the said O.S. No. 402 of 1987, it was held that as possession of the  property had been delivered on the basis of a purported oral agreement of  sale, the principles of res-judicata would be attracted.

9.      Mr. V. Prabhakar, the learned counsel appearing on behalf of the  appellant would submit that as no issue was framed in regard to the  purported oral agreement of sale by and between respondent No. 1 and 2 nor  any specific finding having been arrived at by the learned Trial Judge in the  said O.S. No. 402 of 1987, the impugned judgment is wholly unsustainable. 10.     Section 11 of the Code of Civil Procedure provides that the Court will  have no jurisdiction to try a suit or issue in which the matter directly and  substantially in issue had been in issue in a former suit between the same  parties.            Explanation 8 appended thereto reads as under:

"Section 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." Explanation I.  *****           *****           ***** Explanation II  *****           *****           *****         **********      ********************* Explanation VIII.  \026 An issue heard and finally  decided by a court of limited jurisdiction,  competent to decide such issue, shall operate as res  judicata in a subsequent suit, notwithstanding that  such court of limited jurisdiction was not  competent to try such subsequent suit or the suit in  which such issue has been subsequently raised."

11.     The principles of res-judicata although provide for a salutary principle  that no person shall be harassed again and again, have its own limitations.   In O.S. No. 402 of 1987, the respondent No. 2 was not impleaded as a party.   In his absence therefore, the issue as to whether respondent No. 2 had  entered into an oral agreement of sale or not could not have been adjudicated

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upon.  The said Court had no jurisdiction in that behalf.  If that was decided  in the said suit, the findings would have been nullities.

[See Chief Justice of Andhra Pradesh and another etc. Vs. L.V.A.  Dikshitulu and others AIR 1979 SC 193 at 198 and Hasham Abbas Sayyad  Vs. Usman Abbas Sayyad and Ors. (2007) 2 SCC 355]

12.     As a matter of fact even such an issue was not framed.  The High  Court, therefore, in our opinion posed unto itself a wrong question.   In a suit  for permanent injunction, the Court had rightly proceeded on the basis that  on the date of the institution of the suit, the first respondent was in  possession of the disputed land or not.  It was not required to enter into any  other question.  It, in fact, did not.

13.     It is one thing to say that a person is in possession of the land in suit  and it is another thing to say that he has a right to possess pursuant to or in  furtherance of an agreement for sale which would not only bind the vendor  but also bind the subsequent predecessor.  Had such an issue been framed,  the appellant or the respondent No. 2 could have contended that Section 53  A of the Transfer of Property Act had no application.   For application of  Section 53A of the Act, an agreement has to be entered into in writing.   The  said section provides for application of an equitable doctrine of part  performance.  Requisite ingredients therefor must be pleaded and proved.

14.     A competent Court of law has dismissed the suit for specific  performance of contract filed by the first respondent opining that the  respondent had failed to prove the existence of an oral agreement.  If the suit  for specific performance of contract had not been decreed in favour of the  first respondent, the question of his continuing to remain in possession in  part performance of contract would not arise.    Appellant herein filed a suit for declaration of title and recovery of  possession. He proceeded on the basis that the first respondent was in  possession.  

       The learned Trial Judge and the first Appellate Court, in our opinion,  have rightly held that the principle of res-judicata was not attracted in this  case.    

       In Sajjadanashin Sayed MD. B.E. EDR. (D) by LRs. Vs. Musa  Dadabhai Ummer and Others [(2000) 3 SCC 350] this Court considered the  cases where in spite of specific issue and an adverse finding in an earlier  suit, the same was not treated as res-judicata being purely incidental or  auxiliary or collateral to the main issue stating : "24. Before parting with this point, we would like to  refer to two more rulings. In Sulochana Amma v.  Narayanan Nair this Court held that a finding as to  title given in an earlier injunction suit would be res  judicata in a subsequent suit on title. On the other  hand, the Madras High Court, in Vanagiri Sri  Selliamman Ayyanar Uthirasomasundareswarar  Temple v. Rajanga Asari held (see para 8 therein) that  the previous suit was only for injunction relating to  the crops. Maybe, the question of title was decided,  though not raised in the plaint. In the latter suit on  title, the finding in the earlier suit on title would not  be res judicata as the earlier suit was concerned only  with a possessory right. These two decisions, in our  opinion, cannot be treated as being contrary to each  other but should be understood in the context of the  tests referred to above. Each of them can perhaps be  treated as correct if they are understood in the light of  the tests stated above. In the first case decided by this  Court, it is to be assumed that the tests above-referred  to were satisfied for holding that the finding as to  possession was substantially rested on title upon

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which a finding was felt necessary and in the latter  case decided by the Madras High Court, it must be  assumed that the tests were not satisfied. As stated in  Mulla, it all depends on the facts of each case and  whether the finding as to title was treated as necessary  for grant of an injunction in the earlier suit and was  also the substantive basis for grant of injunction. In  this context, we may refer to Corpus Juris Secundum  (Vol. 50, para 735, p.  229) where a similar aspect  in regard to findings on possession and incidental  findings on title were dealt with. It is stated: "Where title to property is the basis of  the right of possession, a decision on the  question of possession is res judicata on  the question of title to the extent that  adjudication of title was essential to the  judgment; but where the question of the  right to possession was the only issue   actually or necessarily involved, the  judgment is not conclusive on the  question of ownership or title."

Following the principle of law as enunciated in the aforementioned  decision, we are of the opinion that the principle of res-judicata is not  attracted to the facts of the case.

15.     For the reasons aforementioned, the impugned judgment cannot be  sustained which is set aside accordingly.  Appeal is allowed.    There shall,  however, be no order as to costs.