Punjab-Haryana High Court
Mangat Ram And Ors vs Barkha Ram & Ors on 7 January, 2025
Neutral Citation No:=2025:PHHC:000150
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA-1872-2014 (O&M)
Reserved on: 17.12.2024
Pronounced on: 07.01.2025
MANGAT RAM AND OTHERS
. . . .APPELLANTS
Vs.
BARKHA RAM AND OTHERS
. . . . RESPONDENTS
****
CORAM: HON'BLE MR. JUSTICE DEEPAK GUPTA
****
Argued By:- Mr. Sumeet Mahajan, Sr. Advocate with
Mr. Shray Sachdeva, Advocate
for the appellants.
Mr. Madhur Panwar Advocate for
Mr. Aman Pal, Advocate
for Respondents N: 1 to 5; and 7 to 11.
DEEPAK GUPTA, J.
Defendants of the case are before this Court in the
present Regular Second Appeal against the concurrent findings of the Courts
below, in as much as Civil suit No.476 of 2005/2009 filed by plaintiffs Barkha
Ram etc. (respondents herein) for declaration and possession of the suit land
was decreed by the trial Court of learned Civil Judge (junior Division),
Kurukshetra on 28.03.2011. Civil Appeal No.337 of 2013 filed by the
defendants (appellants herein) was dismissed by the Court of learned
Additional District Judge, Kurukshetra on 03.03.2014.
2. Trial Court record was called. Same has been perused. In order
to avoid confusion, parties shall be referred as per their status before the
trial Court.
3.1 Subject-matter of the dispute is 32 Kanal 08 Marla of land
situated in Revenue Estate of Village Yara, Tehsil Shahabad, District
Kurukshetra detailed in para No.1 of the plaint (hereinafter referred as the
'suit land').
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3.2 According to plaintiffs, they along with other co-sharers are
owners of the suit land as per the entries in the revenue record. Defendants
have no concern with the suit land but names of defendant Nos.1 to 4; and
predecessor-in-interest of defendant Nos.5 to 10 i.e. Puran (since deceased)
are being wrongly reflected in para No.4 of the Jamabandi as Kabjan,
whereas these defendants are actually not the owner of the suit land. It is
plaintiffs, who are exclusive owner being co-sharers in the suit land. The
name of defendant No.11 is recorded in the revenue record to be in
cultivating possession of the suit land.
3.3 Plaintiffs have challenged the entries in the revenue record
showing the name of defendant Nos.1 to 10 as Kabjan of the suit land to be
illegal and void by submitting that these defendants were never inducted
nor handed over the possession of the suit property by the plaintiffs. It is
contended that as per the legal position, the person in possession is shown
in column No.5 of the Jamabandi and therefore, the names of defendant
Nos.1 to 10 as Kabjan in column No.4 of the Jamabandi are absolutely
wrong. Plaintiffs never inducted defendant No.11 as their tenant on the suit
land nor defendant No.11 ever paid any Rent, Batai or Chakota to the
plaintiffs and therefore, the entry of defendant No.11 to be in possession of
suit property as Gair Morusi is also illegal and void.
3.4 Asserting that entries in revenue record are wrong and
that plaintiffs are the actual owner of the suit land, they brought the suit
seeking decree of declaration to the effect that entries in Jamabandi
showing defendant Nos.1 to 10 as Kabjan of the suit property are null, illegal
void and not binding on the rights of the plaintiffs and so deserve to be
deleted. Plaintiffs also seek declaration that the defendants are trespassers
over the suit property and as such, decree for possession of the suit land is
also prayed for by directing the defendants to hand over the vacant
possession of the suit property to the plaintiffs.
4.1 In written statement filed by defendant Nos.1 to 10 (appellants
herein), they raised various preliminary objections, the material being that
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suit is barred by limitation, inasmuch as suit for declaration can be filed
within three years but plaintiffs have changed the entries of the revenue
record after more than 100 years and as such, the suit is barred by
limitation.
4.2 These defendants further pleaded that plaintiffs were required
to pay ad valorem Court fee to claim any right, title or possession over the
suit property, inasmuch as defendant Nos.1 to 10 had sold the land
measuring 30 Kanal 5 Marla for consideration of ₹20,25,000/- vide sale deed
dated 01.05.2006 to defendant Nos.11 (i to v), regarding which mutation
No.4185 was entered. Another part of suit land measuring 2 Kanal 3 Marla
was sold for consideration for ₹1,53,000/- vide sale deed dated 27.06.2005,
regarding which mutation No.4207 was sanctioned in favour of defendant
No.11 (through his legal heirs). Defendants claimed that plaintiffs are
required to pay the ad valorem Court fee on ₹21,78,000/-.
4.3 (a) Another strong preliminary objection raised by the defendants
is regarding the suit being barred by res judicata and constructive res
judicata. It was claimed that mutation No.139 dated 15.05.1896 was
challenged by Pirthi Singh, the father of plaintiff No.1; and Ram Kishan, the
father of plaintiff Nos.2 to 5 by way of civil suit No.14 of 72 dated
06.01.1972 in the Civil Court at Karnal, which suit was dismissed on
01.02.1973.
4.3 (b) Further, Ram Singh, the brother of plaintiff No.1 had filed suit
No. 392 of 1994 on 05.02.1986 in the Court of learned Civil Judge,
Kurukshetra regarding the suit land, which was dismissed by the Court on
30.11.1995. Even the civil appeal No.24 of 1997 filed against the aforesaid
judgment was dismissed by the Appellate Court on 16.07.1999.
4.3 (c) It is alleged that despite being in the knowledge of the above
previous litigations, plaintiffs concealed these facts from this Court.
Defendants claimed that they are entitled for special cost from the plaintiffs
in this regard.
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4.4 Defendants pleaded further that defendant No.11 Babu Ram
was held as a tenant under defendant Nos.1 to 10 on the suit land by the
Court in the judgment dated 30.11.1995 and defendant Nos.1 to 10 were
held to be true owner of the suit property. Due to pendency of the above
referred suit, the sale deed could not be executed in favour of defendant
No.11. As such, defendant No.11 had filed civil suit No.428 of 1999, which
was decided in Lok Adalat by the Court on 11.03.2006. This fact was very
much in the knowledge of the plaintiffs. In compliance of the judgment
dated 11.03.2006, defendant Nos.1 to 10 have executed the sale deed in
favour of defendant No.11 (i to v), which sale deed is legal, valid and binding
on the rights of the plaintiffs. All this litigation was in the knowledge of the
plaintiffs but still they concealed these facts from the Court. As such, they
are estopped by their own act and conduct to bring the present suit.
4.5 Defendants further pleaded that mutation No.139 dated
15.05.1896 would reveal that Masania etc. had admitted having sold the
land to Mangal Singh etc. for a sum of ₹250/-, which was obtained by them
for spending in some litigation. Mutation was entered to the effect that
vendees were in possession of the suit land and since the owners had
admitted having sold the same, so the Patwari presented the mutation
before the Assistant Collector for attestation. Before the Assistant Collector,
the vendors denied the transaction but said Assistant Collector recorded the
fact that vendees are in possession, when the land was given and that they
are in possession since long time. Thereafter, an entry was made to the
effect that real owners are Gair Kabij (without possession), while the
vendees are in possession (Kabij) over the suit land. This mutation was
sanctioned way back on 15.05.1896. All the subsequent revenue entries are
based upon this mutation, according to which plaintiffs' father and other co-
sharers are shown to be owners without possession, whereas contesting
defendants Nos.1 to 10 are shown to be owner in possession over the suit
land.
4.6 Defendants also referred to Rule 7.25 (4) of Punjab Land
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Record Manual to claim that a right holder should not be entered as Gair
Kabij, if he himself is in legal or constructive possession, as when he has put
someone in possession on his behalf or the land is lying waste. In the
present case, as the owners Masania etc. admitted before the revenue
officer that they are not in possession, therefore, they were shown as Gair
Kabij and as such, the entries in the mutation and in the subsequent
revenue record cannot be stated to be against the violation of rules.
4.7 With the above stand and controverting all other averments of
the plaintiff, defendants prayed for dismissal of the suit.
4.8 The legal heirs/representatives of defendant No.11 adopted
the same written statement as filed by defendant Nos.1 to 10, as per the
statement made by their counsel.
5.1 Evidence produced by both the parties was taken on record.
5.2 The trial Court found that as per mutation N: 139 dated
15.05.1896 Ex.D-16/T, the entry in favour of defendant Nos.1 to 10 had been
recorded on the basis of an agreement to sell dated 10.02.1890. However,
no such agreement to sell dated 10.02.1890 had been placed on record. It
was further observed that no registered sale deed was executed on the basis
of said agreement nor any court decree was passed and as such, the entry in
mutation Ex.D-16/T was not on the basis of registered document and
therefore, it did not confer any title. Trial court further observed that
Jamabandi Ex.P-1 reflected the names of the plaintiffs as co-owners with
others in the suit property. Based upon these entries, trial Court concluded
that defendant Nos.1 to 10 were trespassers over the suit land, whereas the
plaintiffs were the owners thereof.
5.3 Trial Court also held that as the suit was based upon title,
therefore it was not barred by limitation. On the point of res judicata, trial
Court noticed that the suit of 1972 had been dismissed as withdrawn with
liberty to file fresh suit; whereas, the subsequent suit was only for a decree
of permanent injunction and since the issue involved in that case was
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different from the issues framed in the present suit, therefore, that litigation
did not make the present suit as barred by res judicata.
5.4 Trial Court also held that the suit was not bad for non-payment
of the ad valorem Court fee, inasmuch as the sale deeds in favour of
defendant Nos.11 (i to v) had been executed during the pendency of the
suit.
5.5 With the above findings, the trial Court vide judgment dated
28.03.2011 decreed the suit.
5.6 The appeal filed by the contesting defendants has been
dismissed by the first Appellate Court of learned Additional District Judge,
Kurukshetra vide judgment dated 03.03.2014 by upholding the findings of
learned trial Court on all the issues.
6.1 Assailing the aforesaid concurrent findings, it is contended by
learned senior counsel for the appellants-defendants that both the Courts
have failed to appreciate the factual as well as legal position in right
perspective.
6.2 It is contended by learned senior counsel that it is no doubt
true that initial possession of the defendants over the suit land was by virtue
of an agreement to sell of 1890 for an amount of ₹250/- and no sale deed
pursuant to that agreement to sell was produced but defendants continued
to remain in possession pursuant to that agreement to sell. The plaintiffs,
who are recorded to be co-owner of the suit property, never took any step
to take possession of the suit property.
6.3 Learned counsel for the appellants has put main emphasis on
the admission of the plaintiffs made in the previous litigation of 1972, in
which they specifically pleaded the defendants to be trespassers over the
suit land. Learned counsel contends that in view of the said clear admission
of the plaintiffs that defendants were trespassers over the suit land, it is
evident that possession of the defendants over the suit land was at least
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adverse to that of the true owner i.e. the plaintiffs, who are recorded as
such in the revenue record. The said possession of defendants as trespassers
over the suit land even if assumed since the year 1972, has ripened into the
ownership by the adverse possession, as no suit for possession was later on
filed by the plaintiffs.
6.4 Learned senior counsel for the appellants-defendants contends
further that in the second round of litigation filed in 1995 by another co-
sharers/ brother of the plaintiff N: 1, a specific issue was framed as to
whether the present defendants have become owner of the suit property by
way of adverse possession. That issue was decided in favour of the
defendants by holding that they had become owner of suit property by way
of adverse possession. Learned counsel contends that that finding in the
previous litigation, even if rendered in a suit for permanent injunction, is
binding upon the plaintiffs, as the suit filed by the co-sharer having been
dismissed, the finding thereof is binding upon the other co-sharers/plaintiffs
as well. Learned counsel contends that present suit is liable to be dismissed
on the main ground of res judicata but both the Courts below failed to
appreciate the legal position in this regard.
6.5 With all the above submissions, prayer is made for acceptance
of this appeal by setting aside judgments of the Courts below and to dismiss
the suit of the plaintiffs - respondents.
7. Refuting the aforesaid contentions, learned counsel for the
respondents-plaintiffs has defended the judgments of the Courts below. The
main contention of learned counsel is that the High Court cannot substitute
its views so as to upset the concurrent findings of facts as recorded by the
Courts below. It is contended that since both the Courts below, on the basis
of evidence on record, have held the plaintiffs to be owner of the suit land
and have found the defendants to be trespassers over the suit land,
therefore, suit for possession and declaration has been rightly decreed by
the Courts below. With these submissions, he prayed for dismissal of the
appeal.
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8. This Court has considered submissions of both the sides and
has carefully gone through the trial Court record with the assistance
provided by counsel for both the sides.
9. Earliest revenue entry on record is mutation No.139 of 1895-96
Ex.D16/T, which would reveal that entries of ownership were in the name of
Bahadra & Pehlada sons of Gulzari to the extent of ½ share; and Masania,
Bholu & Sunder sons of Sahaba to the extent of remaining ½ share. These
entries regarding title were changed in the name of Pehlada son of Gulzari
to the extent of ¼ share; Masania, Bholu & Nathu son of Sahaba to the
extent of ¼ share; Mangal Singh son of Sher Singh to the extent of ¼ share;
and Sunder Singh & Shankar Singh sons of Maan Singh to the extent of
remaining ¼ share. These entries were made in the mutation on the basis of
an agreement to sell dated 10.02.1890 for an amount of ₹250/-.
10. The above entries have been carried forward in the next
jamabandi for the year 1898-99 (Ex.D17/T) revealing Pehlada son of Gulzari
to be owner to the extent of ¼ share, Masania, Bholu & Nathu sons of
Sahaba to be owner to the extent of ¼ share but they are recorded as
owner without any possession. On the other hand, Mangal Singh son of Sher
Singh to the extent of ¼ share, and Sunder Singh & Shankar Singh sons of
Maan Singh are recorded to be co-owner to the extent of remaining ¼ share
and they are recorded to be in possession of the suit land.
11. As was observed in the earlier judgment dated 30.11.1995
(Ex.D2), it is in mutation number 139 dated 15.05.1896 that entry was made
by the Patwari with the remarks that Masania etc. had admitted having sold
the land to Mangal Singh etc. for a sum of ₹250/-, which was obtained by
them for spending in some litigation. The Patwari also entered in the
mutation that vendees were in possession over the land and since the
owners had admitted having sold the same, so the mutation was presented
before the Assistant Collector for attestation. Thereafter, the mutation was
produced before the Assistant Collector, before whom the vendors denied
the sale but the Assistant Collector recorded the facts that vendees are in
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possession, whom the land was given and that they are in possession since
long. Thereafter, the entry was made to the effect that real owners are gair
kabiz i.e. without possession; while, vendees are in possession (kabiz) over
the land. This mutation was sanctioned on 15.05.1896. All the subsequent
revenue entries are based upon this mutation, according to which
forefathers of the present plaintiffs are recorded to be co-owners of the suit
land but without possession; whereas, forefathers of the defendants are
recorded to be owners in possession to the suit land. It is also important to
notice that as per mutation Ex.D16, the vendees were already recorded to
be in possession along with the real owners and after this mutation was
attested by the Assistant Collector, the vendees were shown to be in
exclusive possession as Kabiz, while the owners were shown as Gair Kabiz
i.e. without possession.
12. The possession of the defendants/their forefathers over the
suit land has been continuing ever since prior to 1890. However, the trial
Court very easily, disbelieved their case by stating that plaintiffs being the
true owners are entitled to possession, without even adverting to the pleas
raised by the defendants to the effect that they had perfected their title by
way of adverse possession. Ld. trial Court was not even bothered to go in
depth to consider the consequences of the two previous round of litigation.
13. It is true that neither agreement to sell dated 10.02.1890, as
referred in the mutation No.139 of 1895-96, has been placed on record nor
there is anything to show as to whether any sale deed was executed in
pursuance thereto and as to whether any suit for specific performance was
filed pursuant to that agreement to sell but fact remains that the vendees
Mangal etc. i.e. predecessor-in-interest of defendants No.1 to 10 remained
in possession over the suit land ever since 1890. Their possession may be
permissive in the beginning, when the agreement to sell was executed but
once, it is found that there is no evidence that any sale deed was executed
or any suit for specific performance was filed pursuant to the agreement to
sell, obviously their possession became adverse with the passage of time.
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14. There is nothing on file to show that prior to 1972, owners of
the suit land ever took any step to take possession of the suit land from the
predecessor-in-interest of the defendants. It is again no doubt true that
since the agreement to sell was for an amount of ₹250/- i.e. an amount of
more than ₹100/-, therefore, no transfer of title could have taken place
without a registered instrument but this is also the settled proposition of
law that if vendees are in possession of the suit land pursuant to an
instrument, which is null and void, then their possession is to be deemed as
adverse.
19. Reliance in this regard can be placed upon Utha Moidu Haji Vs.
Kuningarath Kunhabdulla (SC) 2006(14) Scale 156, wherein it has been held
by Hon'ble Supreme Court that when a person enters into possession of
land under void or voidable transaction, his possession becomes adverse
from the date, he comes into possession and that starting point of limitation
of the adverse possession is, when he enters into possession under such a
void or voidable transaction.
20. In the above case before Hon'ble Supreme Court, defendants
No.2 to 8 sold land in dispute vide registered sale deed dated 30.08.1963
not only on their behalf but also on behalf of the minor child (plaintiff), in
favour of X. Plaintiff attained majority on 30.07.1974 and filed the suit for
setting aside the sale deed on 18.03.1981. Hon'ble Supreme Court held that
plaintiff would be deemed to have knowledge about the execution of the
sale deed on his attaining majority, as soon as he pleaded and proved that
his case comes within the purview of the exception contained in the
provisions of Limitation Act. The period of limitation would be either three
years from the date of attaining majority by the plaintiff or 12 years from
the date of execution of sale deed. As plaintiff had filed the suit after
sleeping for six years over his right to sue, the suit was held to be barred by
Article 60 (a) of the Limitation Act.
21. In the present case, it is important to notice that in 1972, Pirthi
Singh son of Inder, Sahota & Phula sons of Sardha and Ram Krishan, son of
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Smt. Shanti, widow of Punjaba brought a suit (CS N: 14/1972) seeking
decree for possession of the suit land against present defendants. That suit
was brought with the similar pleas to the effect that entries in the revenue
record showing the defendants to be in possession were wrong and illegal
and did not deprive the plaintiffs of their legal and legitimate right over the
suit land. Defendants No.1 to 10 of the present case, were the defendants
of 1 to 9/ their predecessors in the previous suit. In para No.9 of the plaint
(Ex.D22) of that previous suit of 1972, it was specifically pleaded that
defendants No.1 to 9 are trespassers and that they are not entitled to
remain in possession of the suit land, as they have no right of any kind
vested in them and they are liable to be dispossessed. However, the said
civil suit filed by various co-owners including Pirthi Singh, the father of
present plaintiff No.1; and Ram Kishan (plaintiff N: 6) and the father of
plaintiffs No.2 to 5 was dismissed as withdrawn on 01.02.1973 vide order
Ex.D1 with permission to file fresh suit on the same cause of action.
22. Even if for the sake of arguments, it is assumed that possession
of the defendants/their predecessors in interest remained permissive prior
to 1972, at least when the suit was filed by predecessor-in-interest of the
present plaintiffs in 1972, it was their clear admission that defendants were
in possession of the suit land as trespassers and therefore, they had sought
the possession on the basis of their title but that suit was dismissed as
withdrawn with liberty to file the fresh suit on the same cause of action. No
fresh suit for possession was brought by them. This is true that suit of 1972
was not decided on merits and cannot operate as res judicata but at the
same time, court cannot ignore the admission made by the predecessor-in-
interest of the plaintiffs to the effect that defendants/their predecessors
were in possession of the suit land as predecessors. As such, plaintiffs are
now estopped from denying the possession of the defendants over the suit
land to be adverse.
23. Still further, second round of litigation started in the year 1986,
when Ram Singh son of Pirthi Singh i.e. brother of plaintiff No.1-Barkha
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Ram, also recorded to be co-sharer in the suit land, brought this suit seeking
decree for permanent injunction bearing Civil Suit No.392 of 94 titled 'Ram
Singh Vs. Puran Chand & Others'. Ex.D2 is the copy of the judgment dated
30.11.1995 passed in that suit, which would reveal that same pleas were
taken by plaintiff of that case i.e., Ram Singh as in the present case. It was
pleaded by him that he along with Satpal, Barkha Ram (present plaintiff),
Pirthi Singh, Surta, Phula, Charta, Mam Raj, Ram Rattan, Ram Kishan
(plaintiff N: 6 of present case & father of plaintiffs No.2 to 5) etc. were co-
owners in the suit land and that entries in jamabandi in favour of the
defendants showing them to be in possession in the column of ownership
were against law and against procedure, which casted a cloud on the title of
the plaintiffs. They also challenged the entry of mutation No.139 dated
15.05.1896 to be illegal, void and not binding upon their rights. It was
claimed that defendants or their predecessors had never been in possession
of the land nor had cultivated the same and that entries were incorporated
in collusion with the revenue officials. Defendants contested the suit and
also referred about the previous litigation of 1972, which was dismissed as
withdrawn. It was specifically pleaded that in the previous litigation, it was
admitted by the plaintiffs that defendants were in possession of the suit
land as trespassers. The prayer made by the plaintiffs seeking decree of
injunction to restrain the defendants from alienating the suit property, was
opposed by the defendants of that case.
24. It is important to notice the material issues framed in that suit
of 1986. The material issues No.1, 2, 2(a) and 10 are as under: -
1. "Whether the plaintiff is co-owner in possession of the suit land as
alleged? OPP
2. Whether entries in the revenue record in favour of the defendants are
false and fabricate as alleged? OPP
2A. Whether the mutation No.139 of 15.05.1896 is illegal and void as
alleged? OPP
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10. Whether the defendants had become owner of the suit land by way of
adverse possession? OPD"
25. Based upon the evidence on record, the trial Court vide
judgment dated 30.11.1995 specifically held under issue No.1 that plaintiff
was neither the owner nor in possession of the suit land. Issues No.2 and 2A
were decided together and it was specifically held that entries of mutation
No.139 of 15.05.1896 and the subsequent revenue record were not illegal
or in violation of law. As such, these issues were also decided against the
plaintiff. Under Issue No.10, it was specifically held that defendants had
become owner of the suit land by way of adverse possession. Consequent to
the findings on these material issues, the suit filed by Ram Singh, one of the
co-shares in the suit land was dismissed by the Court vide judgment dated
30.11.1995. Plaintiff of that case filed Civil Appeal No.24 of 1997 against the
aforesaid judgment but the same was dismissed in default vide order dated
16.07.1999 (Ex.D4).
26. The question is as to whether the aforesaid judgment of 1995,
which was rendered in a suit for permanent injunction, filed by Ram Singh,
one of the co-sharers and brother of one of the plaintiffs Barkha Ram,
amounts to res judicata or not?
27. It is the contention of ld. counsel for the respondents that a
finding returned in the suit for permanent injunction does not amount to
res judicata. Another contention raised by him is that present plaintiffs were
not party to the previous litigation and as such, the judgment does not
amount to res judicata. This reasoning has also been accepted by the trial
Court and affirmed by the Appellate Court. However, I am afraid that the
view taken by the Courts below in this regard is absolutely wrong and illegal.
Let us notice the legal position in this regard.
28. In Ramachandra Dagdu Sonavane vs. Vithu Hira Mahar, AIR
2010 SC 818 : (2009) 10 SCC 273, explaining the scope of doctrine of Res-
Judicata, it has been observed by Hon'ble Supreme Court as under:
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"42. Res-judicata and Code of Civil Procedure :- 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 the 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 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 vs. Cochin Port Trust, AIR 1978 SC 1283].
44. In Swamy Atmandanda vs. Sri Ramakrishna, Tapovanam [(2005) 10
SCC 51], it was held by this court :
"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.
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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 vs. Bunwari Lal Roy
reported in [1875 ILR (IC-144)], which is followed by this Court in the case
of Ishwar Dutt Vs. Land Acquisition Collector & Anr. [(2005) 7 SCC 190],
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 the case of Isher Singh vs. Sarwan Singh, [AIR 1965 SC 948] has
observed :
"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 every
one 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 O.S. No.104 of
1953, regarding adoption would also operate as a res-judicata in view of
the judgment of this Court in the case of Sulochana Amma Vs. Narayanan
Nair [(1994) 2 SCC 14]. 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.
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It is a 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 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 injunction suit equally operates as a res-
judicata."
47. The same view is reiterated in the case of Gram Panchayat of Village
Naulakha Vs. Ujagar Singh & Ors. [AIR 2000 SC 3272]. This Court has
stated, that, even in an earlier suit for injunction, 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.
xxxxxxxxx
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 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 1953
suit and, therefore, the said issue which has been decided in 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 Watandar
was binding on the parties. The similar question has to be decided by the
S.D.O. 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."
29. It is, thus, clear from the legal position as above that it is
settled law that in a suit for injunction, when title is in issue, for the purpose
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of granting injunction, the issue directly and substantially arises in that suit
between the parties, when the same 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 injunction suit equally operates as a res-judicata.
30. In the present case also, Ram Singh, plaintiff of the previous
suit, had sought decree for injunction on the basis that entries in the name
of defendants showing them to be in possession were wrong and that they
should be restrained from alienating the suit property. The decree of
injunction could not have been granted, unless the plea taken by him
regarding the entries in the revenue record was examined by the Court and
similarly, the Court was also required to examine as to whether the
defendants had perfected their title by way of adverse possession, as was
contended by them. These findings were returned and only thereafter, the
suit for injunction was dismissed.
31. In view of the legal position discussed above, the above
findings, even if rendered in a suit for injunction, amounts to res judicata.
32. As far as the plea that plaintiffs are not parties to the suit filed
by Ram Singh is concerned, it is also without any merit because the suit in
1986 was filed by one of the co-sharers, who is the real brother of plaintiff
No.1. Besides, it has already been noticed that predecessor-in-interest of
the present plaintiffs and one of the present plaintiffs had filed a suit in
1972 seeking possession of the suit land, in which they had specifically
claimed the defendants to be in possession of the suit land as trespassers.
Thus, on both the counts, it cannot be said that defendants had not the
perfected their title over the suit land, as the possession of the defendants
being in the capacity of the trespassers being as adverse, was to be in the
knowledge of the real owners.
33. Apart from the above, trial Court also went in error in holding
the suit to be within limitation on the ground that suit was filed on the basis
of title and therefore, no period of limitation was prescribed. Since it was
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the specific stand of the defendants that they had perfected their title by
adverse possession, as was held in the previous litigation, the issue was
governed under Article 65 of the Limitation Act. Suit in such a case can be
filed within a period of 12 years. The legal position in this regard is
explained in Sopanrao vs. Syed Mehmood (2019) 7 SCC 76, wherein it was
held as below:-
"9...........The limitation for filing a suit for possession on the basis of title is
12 years and, therefore, the suit is within limitation. Merely because one of
the reliefs sought is of declaration that will not mean that the outer
limitation of 12 years is lost. Reliance placed by the learned counsel for the
appellants on the judgment of this Court in L.C. Hanumanthappa v. H.B.
Shivakumar (2016) 1 SCC 332 is wholly misplaced. That judgment has no
applicability since that case was admittedly only a suit for declaration and
not a suit for both declaration and possession. In a suit filed for possession
based on title, the plaintiff is bound to prove his title and pray for a
declaration that he is the owner of the suit land because his suit on the
basis of title cannot succeed unless he is held to have some title over the
land. However, the main relief is of possession and, therefore, the suit will
be governed by Article 65 of the Limitation Act, 1963. This Article deals
with a suit for possession of immovable property or any interest therein
based on title and the limitation is 12 years from the date when possession
of the land becomes adverse to the plaintiff."
34. In the present case, suit for possession was earlier filed in 1972,
wherein possession of defendants as trespassers over the suit land was
admitted by the predecessors of the plaintiffs. Suit was dismissed as
withdrawn with permission to file fresh suit on same cause of action. No
such suit with same cause of action was filed. Rather, second suit was filed
by another co-sharer in the suit land/ brother of one of the plaintiffs of
present suit in 1986 seeking decree for injunction, which suit was dismissed
in 1995 and appeal dismissed in 1999. Present suit has been filed in 2005
i.e., much beyond the period of 12 years from the date of admission of
plaintiffs regarding possession of defendants being that of trespassers over
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the suit land made in 1972. As such, present suit is clearly barred by
limitation.
35. The last contention raised by learned counsel for the
respondents is that the High Court cannot intervene in the concurrent
findings of the facts as recorded by the Courts below. It has also no merit.
36. In Lakhpat Rai & another vs. J.D Gupta & Others, RSA 4958
-2012 decided on 14.10.2024, this court after referring to catena of
authorities on this issue, held as under:
"60. To conclude, legal principles, which can be culled out are that though
High Court is not to interfere with the concurrent findings of the Courts
below but it is not an absolute rule. There are some exceptions for
interference by the High Court, when it is found that:
When finding of fact by the Courts below is vitiated by non
consideration of material evidence or erroneous approach.
The Courts have drawn wrong inferences from the proved
facts by applying the law erroneously.
The Courts have wrongly cast the burden of proof.
When decision is based upon no evidence, which would mean
that not only there is total dearth of evidence but also, where
is the evidence taken as a whole, is not reasonably capable of
supporting the finding.
When the judgment of the final Court of fact is based on
misinterpretation of documentary evidence or on
consideration of inadmissible evidence or ignoring material
evidence.
37. In the light of above exceptions, when the evidence on record
in the present case is analysed, it is found that courts below have drawn
wrong inferences from the proved facts by applying the law erroneously.
The judgment of trial court and also of the first appellate court as final Court
of fact, is based on misinterpretation of legal position and so, those findings
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cannot be sustained.
38. As such, the contention of Ld. Counsel for contesting
respondents to the effect that there is no reason to interfere in concurrent
finds of facts of courts below, is found to be devoid of any merit and, so the
same is rejected.
39. On account of the entire discussion as above, it is held that the
judgments passed by the Courts below cannot be sustained in the eyes of
law. These judgments are hereby set aside. The suit filed by the plaintiffs-
respondents is hereby dismissed, as it is the appellants-defendants, who
had become owners of the suit land by way of adverse possession, as had
been held in the earlier suit decided in 1995 and which finding is binding on
the present plaintiffs. Suit is also found to be barred by limitation.
Appeal is allowed accordingly.
07.01.2025 (DEEPAK GUPTA)
Vivek JUDGE
Whether speaking/reasoned? Yes
Whether reportable? No
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