Telangana High Court

Thupakula Sampath vs Thallapally Srinivas And 2 Others on 29 November, 2022

Bench: P.Madhavi Devi

     THE HONOURABLE SMT JUSTICE P. MADHAVI DEVI


        CIVIL REVISION PETITION No.1517 OF 2022


ORDER:

1. This Civil Revision Petition has been filed by the

petitioner challenging the order of the Prl. Junior Civil

Judge-cum-Judicial Magistrate of First Class, Jangoan in

I.A.No.110 of 2022 and I.A.No.111 of 2022 in O.S.No.53 of

2020, dated 17.03.2022.

2. Brief facts leading to the filing of the present

revision petition are that the petitioner herein is the

petitioner in I.A.No.110 and 111 of 2022 in O.S.No.53 of

2020. I.A.No.110 of 2022 was filed by the petitioner to

implead himself as plaintiff No.2 in I.A.No.76 of 2020 in

O.S.No.53 of 2020 for adjudication of the matter while

I.A.No.111 of 2022 was filed to implead himself as plaintiff

No.2 in the suit i.e., O.S.No.53 of 2020.

3. The plaintiff in O.S.No.53 of 2020 was the

vendor of the petitioner and the petitioner has purchased

the suit schedule property from him after the suit was

filed. It is stated by the petitioner that he was not aware of PMD, J CRP. No.1517 OF 2022

the litigation that the vendor of the petitioner had filed suit

for injunction against the respondents/defendants and

ad-interim injunction was granted in favour of the plaintiffs

in I.A.No.76 of 2020.

4. It is submitted that the petitioner has

purchased the suit schedule property vide registered sale

deed bearing document No.3322, dated 11.03.2020 from

the plaintiff and he is in continuous possession of the said

property without any interference or obstruction from

anybody as he was bonafide purchaser of the suit schedule

'A' property. It is submitted that the

defendants/respondents also have filed a suit in

O.S.No.231 of 2021 on the file of Prl. Junior Civil Judge,

Jangoan for declaration of Title and Injunction in respect of

suit schedule property and the plaintiff in O.S.No.53 of

2020 as well as the petitioner herein were made

parties/defendants in the suit and only on receipt of suit

summons that the petitioner came to know about the filing

of O.S.No.53 of 2020 by his vendor. On coming to know

about the pendency of the suit, implead petition in the Suit

as well as the Interlocutory Application is filed to pursue PMD, J CRP. No.1517 OF 2022

his legal remedies. The Civil Court has dismissed both the

petitions holding that the suit for injunction was a

personal right and a cause of action would arise only to the

petitioner therein and since the petitioner has purchased

the property subsequently and claimed to be in possession

of the property and no interference from any quarter he

cannot claim the injunction through plaintiff. It is further

observed that the petitioner is already defendant in the

counter claim suit in O.S.No.231 of 2021 and therefore he

can safeguard his interest in the said suit and therefore,

suit as well as Interlocutory Application can be decided

even without impleading him.

5. The learned counsel for the petitioner submits

that the petitioner being the bonafide purchaser and

having purchased the suit schedule property by way of

registered sale document, steps into shoes of the plaintiff

as a successor in interest to pursue the suit in the suit

schedule property and therefore, seeks setting aside of the

order of the lower court in I.A.No.110 and 111 of 2022 and

allowing the Interlocutory Applications by impleading the

petitioner herein in O.S.No.53 of 2020 and I.A.No.76 of PMD, J CRP. No.1517 OF 2022

2020. He placed reliance upon the following two judgments

in support of his contention, (1) Chackadath Varkey

Rainu vs Kurmapu Savitri and others,1 and

(2) Mohd. Sharfuddin (died) by Lrs. & Others vs Mohd.

Jamal and Others2.

6. The learned counsel for respondents however

submits that in a suit for injunction, only a person of

aggrieved can seek a remedy against the persons who are

interfering with his possession and since admittedly, the

petitioner herein was not only the possessor of the land as

on the date of filing of the suit in O.S.No.53 of 2020, he

cannot seek impleadment into suit to pursue the remedy. It

is submitted that if the petitioner is in possession as

claimed by him and if there is any interference by the

respondents herein, he has all the rights to file a fresh suit

for injunction but cannot seek impleadment, in which,

he had no right. Therefore, he seeks dismissal of the Civil

Revision Petition.

2019 (5) ALD 324 (AP)

2003 (5) ALT 86 PMD, J CRP. No.1517 OF 2022

7. This Court having considered the rival

submissions made by the counsel for both the parties,

finds that O.S.No.53 of 2020 was the suit filed for

permanent injunction and ad-interim injunction was

granted in the I.A. on the basis of possession of the party

over the property and on the cause of action pleaded by the

plaintiff. As rightly held by the lower Court, the

predecessor of the petitioner was in possession of the

property as on the date of filing of the suit in O.S.No.53 of

2020 and the petitioner has purchased the property

subsequently and thus has become the successor-in-

interest. But a suit for injunction is a right in personam

and not in rem, as held by the Hon'ble Karnataka High

Court in the case of Shankaralingappa Vs. Nanje Gowda

and Others3. The relevant paras are reproduced hereunder

for ready reference:

"20. Let me now examine whether a decree for permanent injunction obtained by Kalaiah in O.S.No. 597 of 1942-43 (Exhibit D-12) against Lingamma from whom the plaintiff claims to have derived title, operates as res judicata against the plaintiff.

21. Section 11 of the Civil P.C. is the legislative exposition of the common law maxim memo debet his vexari pro una at eadem causa.

The scope, ambit and the limitations to which the

AIR 1981 Karnataka 78 PMD, J CRP. No.1517 OF 2022

rule of res judicata and Section 11 of the Code are subject, have been explained by the English Courts, the Privy Council our Supreme Court, this Court and various other High Courts in a large number of decisions and a reference to all of them is neither necessary nor desirable.

22. In the celebrated Duchess of Kingston's case, ((1776) 20 State Tr 355) that also being one of the leading, cases, Sir Williams de Grey, afterwards Lord Walsingham. (vide A selection of Leading Cases by Smith, Vol. II, 13th Edition at page 644) stated the principle of res judicata in these words that have become classical:

"What has been said at the bar is certainly true, as a general principle, that a transaction between two parties, in judicial proceedings, ought not to be binding upon a third; for it would be unjust to bind any person who could not be admitted to make a defenc4 or to examine witnesses, or to appeal from a judgment he might think erroneous; and therefore the depositions of witnesses in another cause in proof of a fact, the verdict of a jury finding the fact, and the judgment of the court upon facts found, although evidence against the parties, and all claiming under them, are not in general, to be used to the prejudice of strangers. There are some exceptions to general rule, founded upon particular reasons, but, not being applicable to the present subject, it is unnecessary to state them.

From the variety of cases relative of judgments being given in evidence in civil suits, these two deductions seem to follow as generally true; first, that the judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive, between the same parties, upon the same matter, directly in, question in another court; secondly, that the judgment of a court of exclusive jurisdiction directly upon the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another Court, for a different purpose. But, neither the judgment of a concurrent or exclusive jurisdiction is evidence of any matter which came collaterally in question, though within PMD, J CRP. No.1517 OF 2022

their jurisdiction, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment".

23. That the plaintiff was not a party to the earlier suit and is not also the legal representative of Lingamma is not in dispute. But what is seriously pressed is that the plaintiff should be held to be a privy or a person claiming under the same title as of Lingamma and he is, therefore, bound by the decree against Lingamma. On the distinction between 'ownership' and 'possession' noticed earlier, it would be difficult to hold that the plaintiff is litigating under the same title and that the decree obtained by Kalaiah in O.S.597 of 1942-43 operates as res judicata against him.

24. The word 'privy' has different meanings in different contexts. Wharton's Law Lexicon defines the terms 'Privy' and 'Privies' thus:

"Privy --- having a participation in some Act, so as to be bound thereby, see the word in this sense in the statutory implied covenant in Part VI of the Second Schedule of the Law of Property Act, 1925, and Woodhouse v. Jenkins, (1832) 9 Bing

431. Also a participation in interest or knowledge."

Privies --- those who are partakers or have an interest in any action or thing or any relation to another. They have been said to be of six kinds: (1) Privies in blood, such as the heir to his ancestor, or between coparceners.

(2) Privies in representation, as executors or administrators to their deceased testator or intestate.

(3) Privies in -estate, as grantor and grantee, lessor and lessee, assignor and assignee, etc. (4) Privities, in respect of contract, are personal privities, and extend only to the persons of the lessor and lessee, or the parties to the contract or assignees upon a fresh contract or novation with the assignee.

(5) Privies, in respect of estate and contract together, as where the lessee assigns his interest, but the contract between lessor and lessee continues, the lessor not having accepted the assignee in substitution. (6) Privies in law, as the lord by escheat, a tenant by the courtesy, or in dower, the incumbent of PMD, J CRP. No.1517 OF 2022

a benefice, a husband suing or defending in right of his wife, etc. See Jac, Law Diet; Co. Litt. 271 a.

A judgment in a suit for injunction is not a judgment in rem and binds only the parties to the suit. Broadly 'privies' are of three kinds viz., (i) 'privies' in blood; (ii) 'privies' in estate and (iii) 'privies' in law. The plaintiff is not a 'privy' in blood and a 'privy' in law. But, the question is whether he is a 'privy' in estate.

25. The suit filed by Kalaiah as also the suit filed by the plaintiff are not for declaration of title or their ownership. Both the suits are simple suits for permanent injunctions. A decree for permanent injunction does not prohibit the defendant from instituting a suit for declaration of his title and for recovery of possession from the very decree holder that has obtained a decree for permanent injunction. On the very first principle stated by Sir William de Grey in Duchess of Kingston's case, as also on the legal principles that distinguish ownership and possession, it is difficult to hold that a transferee is a 'privy' in estate and the decree made against his transferor operates as res judicata against him. A decree for permanent injunction obtained by one person against another person, cannot obviously bind all other persons and ignore the factual changes that take place with regard to possession. If that is not the position, then it ignores all legal and factual changes that take place and stamps that decree as if it is a covenant running with that land. With all the anxiety of law to safeguard possession, acceptance of such a proposition, would even defeat the very safeguards provided by law and would create innumerable problems in safeguarding possession. In this view also, the Court should be loath to accept the extreme proposition that the plaintiff, the transferee is a 'privy' in estate and the decree obtained by Kalaiah against Lingamma operates as res judicata against him. From this it follows, that the decree in O.S.No. 597 of 1942-43 (Exhibit D-12) cannot operate as res judicata against the plaintiff.

PMD, J CRP. No.1517 OF 2022

26. An injunction does not run with the land. An injunction only acts in personam or against a person. Both these principles are firmly established legal principles (vide Somnath Honnappa Bennalkar v. Bhimrao Subrao Patil, ILR (1974) Kant 1506)."

8. From the above it is seen that an order of

injunction cannot be used against a party who was not a

party to the suit, but on the contrary, it can be used as a

shield by a person who is a successor-in-interest to defend

his possession. Since, the plaintiff was enjoying the order

of injunction against the defendants, his successor-in-

interest also can protect and defend the possession over

the suit schedule land by impleading himself in the suit.

9. In view of the same, this Court is inclined to set

aside the order of the Civil Court in I.A.Nos.110 of 2022 &

10. Accordingly the Civil Revision Petition is

allowed. There shall be no order as to costs.