# KOSHAL PAL & ORS v. MOHAN LAL & ORS

- **Citation:** [1976] 2 S.C.R. 827
- **Court:** Supreme Court of India
- **Decided:** 1975-11-26
- **Case number:** Civil Appeal No. 175 of 1968
- **Bench:** K. K. Mathew, P. K. Goswami, N. L. Untwalia
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/koshal-pal-ors-v-mohan-lal-ors-6557
- **Pages:** 18

## Headnote

Code of Civil Procedure (Act 5 of 1908). Sec. 11-Res judicata--Suit based
on relationship of /,and/ord and tenant dismissed-Subseque111 suit based on title
when barred by res judicata.
A
B
A suit for rent and possession of a house by eviction of the defendants was
dismissed by the trial Court. The suit was filed against 6 defendants but the
claim against the 6th defendant \tas not pursued. The 4th defendant was the
mother of defendants I to 3 and the 5th defendant was her brother. Defendants
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2 and 3 were minors. The suit was on the basis of a rent note purported to
!;>ave been executed bv the 5th defendant on behalf of the defendants 1 to 4
as tenants; and alternatively, the plaintiff relied on the status of defendant~ 1
to 4 as tenants deriv-ed from the position of the father of defendants 1 to 3 as
a tenant under plaintiff's father.
The trial Court held that defendants 1 to 4
were in adverse possession of the house. The ·plaintiff filed an appeal, but
against defendants 2 and 3 it was filed out of time. The first appellate Court
observed that the trial Court "profed into unnecessary matters".
It passed a
decree against the 5th defendant "on his own account" to vacate the house,
D
but, as admittedly, he was never in occupation of the house, that decree was
infructuous. The appellate Court also held that the plaintiff's suit against the
defendants 1 to 4 and 6 must fail and that the appeal against defendants 2 and
3 should fail on the ground of limitation as well.
The plaintiff then filed anoth-er
suit against the same defendants in the same trial Court for a declaration of
his tiele to the house a_nd for possession. This suit was decreed by the trial
Cgurt and· the first appellate Court. Second· appeals to the High Court, in both
matters, were heard together and disposed of by a common judgment and both
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appeals were dismissed. The High Court observed in its judgment that as regards the question of adverse possession of defendants I to 4 in the first suit,
"the lower appellate Court held that it did not arise and, therefore, no finding
was given on that point". The question whether the second suit was barred
by res judz'cata because of the decision in. the first suit was not raised at the
hearing before the High Court. The plaintiff q_id not file a further appeal to
this Court in the first suit, but defendants 1 to 4 filed an appeal to this Court in
tb.e second suit and raised_ the plea of res judlcata. The plaintiff contended in
reply that the 2nd suit was not barred by res judicata because, (1) there
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was no final decision regarding the adverse possession of defendants 1 to 4 in
the first suit; and (2) there was no finding in the earlier suit on plaintiff's
title, as the question was not raised in the first suit, and so the scope and subject matter of the two suits was not the same.
HELD : (Per Majority-K. K. Mathew and P. K. Gosirami, JJ.) :
'
The appeal of defendants 2 and 3 must be allowed, because, the second suit
was barred by res judicata as against them, but not against defendants I and
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4. [8J4A-B]
(I )(a) Ordinarily. when there is an appeal against a judgment, the appel·
late order alone will be operative.
But, in the present case, on the dismissal of
the plaintiff's appeaL by the first appellate Court in the first suit, as time barred,
against defendants ?. and 3, the trial Court's judgment became final between
them and the plaintiff. Tbe High Court, in second appeal, did not do anything
to the contrary with regard to the appeal against these two defendants.
The
plaintiff .took a specific ground in the High Court that "the lower appellate
H
Court erred in law in dismissing the appeal against defendents 2 and 3 on the
ground of limitation". but the High Court did not record any decision on this
point, and did not disturb the finality of the decision regarding the adverse
possession of defendants -2 and 3.
Its observation that no finding was given
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SUPREME COURT REPORTS
(1976] 2 S.C.R.
by th

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1
KOSHAL PAL & ORS.
v.
MOHAN LAL & ORS
November 26, 1975
82 7
[K. K. MATHEW, P. K. GOSWAMI AND N. L. UNTWALIA, JJ.)
Code of Civil Procedure (Act 5 of 1908). Sec. 11-Res judicata--Suit based
on relationship of /,and/ord and tenant dismissed-Subseque111 suit based on title
when barred by res judicata.
A
B
A suit for rent and possession of a house by eviction of the defendants was
dismissed by the trial Court. The suit was filed against 6 defendants but the
claim against the 6th defendant \tas not pursued. The 4th defendant was the
mother of defendants I to 3 and the 5th defendant was her brother. Defendants
C
2 and 3 were minors. The suit was on the basis of a rent note purported to
!;>ave been executed bv the 5th defendant on behalf of the defendants 1 to 4
as tenants; and alternatively, the plaintiff relied on the status of defendant~ 1
to 4 as tenants deriv-ed from the position of the father of defendants 1 to 3 as
a tenant under plaintiff's father.
The trial Court held that defendants 1 to 4
were in adverse possession of the house. The ·plaintiff filed an appeal, but
against defendants 2 and 3 it was filed out of time. The first appellate Court
observed that the trial Court "profed into unnecessary matters".
It passed a
decree against the 5th defendant "on his own account" to vacate the house,
D
but, as admittedly, he was never in occupation of the house, that decree was
infructuous. The appellate Court also held that the plaintiff's suit against the
defendants 1 to 4 and 6 must fail and that the appeal against defendants 2 and
3 should fail on the ground of limitation as well.
The plaintiff then filed anoth-er
suit against the same defendants in the same trial Court for a declaration of
his tiele to the house a_nd for possession. This suit was decreed by the trial
Cgurt and· the first appellate Court. Second· appeals to the High Court, in both
matters, were heard together and disposed of by a common judgment and both
E
appeals were dismissed. The High Court observed in its judgment that as regards the question of adverse possession of defendants I to 4 in the first suit,
"the lower appellate Court held that it did not arise and, therefore, no finding
was given on that point". The question whether the second suit was barred
by res judz'cata because of the decision in. the first suit was not raised at the
hearing before the High Court. The plaintiff q_id not file a further appeal to
this Court in the first suit, but defendants 1 to 4 filed an appeal to this Court in
tb.e second suit and raised_ the plea of res judlcata. The plaintiff contended in
reply that the 2nd suit was not barred by res judicata because, (1) there
F
was no final decision regarding the adverse possession of defendants 1 to 4 in
the first suit; and (2) there was no finding in the earlier suit on plaintiff's
title, as the question was not raised in the first suit, and so the scope and subject matter of the two suits was not the same.
HELD : (Per Majority-K. K. Mathew and P. K. Gosirami, JJ.) :
'
The appeal of defendants 2 and 3 must be allowed, because, the second suit
was barred by res judicata as against them, but not against defendants I and
G
4. [8J4A-B]
(I )(a) Ordinarily. when there is an appeal against a judgment, the appel·
late order alone will be operative.
But, in the present case, on the dismissal of
the plaintiff's appeaL by the first appellate Court in the first suit, as time barred,
against defendants ?. and 3, the trial Court's judgment became final between
them and the plaintiff. Tbe High Court, in second appeal, did not do anything
to the contrary with regard to the appeal against these two defendants.
The
plaintiff .took a specific ground in the High Court that "the lower appellate
H
Court erred in law in dismissing the appeal against defendents 2 and 3 on the
ground of limitation". but the High Court did not record any decision on this
point, and did not disturb the finality of the decision regarding the adverse
possession of defendants -2 and 3.
Its observation that no finding was given
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SUPREME COURT REPORTS
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by the first appellate Court ~n th!l question of. adverse po~,ession shows that
the findmg of advers7 possession g.iven by the tnal Court was displaced by the
fi:st appellate Court rn the first smt, but only .in relation to 1lze adverse posses"
s1,on oj defendallls 1 -and 4 and not of.. defendams 2 and 3
When there i
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appeal ii: law by the plaintiff against defendants 2 and 3 io the firnt appe~J::Je
Court, his appeal to. the first appellate Court against the other defendants cannot destroy the finality of the trial Court's decision as far as defendants 2 and
3 lire concerned. Hence, defe,ndants 2 and 3 can claim in this Court that so
far as .they are c?ncerned" wit~ rega_rd to their title to the house by adverse
possess1?n, there 1s a findmg. m their favour by the trial Court which was
neve~ disturbed by any Court m appeal, that it is binding on the plaintiff and
that 11 operates as res judicata in the second suit.
(832. B-G 833 HJ
'
(b) There is no poss~bility of inconsistent decrees, one against defendants
2 ai:d 3 and another agams~ defendants l and 4, be_ing passed.
A decree for
partial possessmn on the basis of the adverse possessmn of defendant> 2 and 3
can be passed, because, the minors' ( d~fendants 2 and 3) interest, even though
repr~sented by one of the other partJes, is separale and distinguishable frnm
!he mterest of that. party and that of the others. In fact, there was a decree
m the first smt against the 5th defendant alone "on bis account" and the claim
against 6th defendant for eviction from a portion of the house 'was abandoned
even in the second suit. [836 E-Fl
( c) Defendants 2 and 3 could not have raised the plea of res judicata before the High Court.
When second appeals arising out of two suits filed by the
plaintiff, are treated as connected appeals and disposed of by the High Court
by a common judgment. there is, ordinarily, no question of invoking the plea
of res judicata before the High Court as the findings in the earlier suit are not
till then final for the purpose of the second suit. The plaintiff not having
appealed against the decision of the High Court in the first suit. defendants 2.
and 3 could raise the plea of res judicata for the first time only in this Court
aft.er the issue of adverse possession of defendants 2 and 3 lias been finally decided by the High Court in the first suit. f835C-E]
(2) If a matter directly and substantially in issue in an earlier suit had
been finally adjudicated upon by a court of competent jurisdiction, the matter
becomes rest judicata between the same parties with regard to the identical subject-matter in a subsequent suit. In the present case, in both the suits, the
parties. and the property for possession of which the suits were filed, are identical.
The fact that in the second suit title to the property was brought in issue
which was not an adjudicated issue in Jhe first suit, is, however, not material.
since the matter relating to the statu> of the defendants as tenants was directly
and substantially in issue between the parties in both the suits.
In the first
suit, the relief was claimed on two alternative pleas that tlze defendants were
tenant.v and the Trial Court rejected both the pleas, and held that the defendants had matured their title by adverse possession.
In the second suit, although
it was one for declaration of title and for possession, it was on the basis of the
alternative plea set up, in the' earlier suit. The plaintiff sought to rely upon
con5tructive possession through the defendants as tenants under his father and
later under him.
But, this very matter about the tenancy of the father of
defendants l to 3 under plaintiff's father bad been gone into in the earlier suit
and it was found in favour of the defendants by the trial Court-which was not
disturbed by the first appellate Court or the High Court-that their father was
not a tenant under the father of the plaintiff and that therefore, the 1efendants
were also not tenants under the plaintiff. This decision by the trfal Court in
the first snit against the plaintiff was not a mere collateral or incidental
decision, because. it was necessary for holding that the defendants had acquired
title by adverse possession. [834 C-Hl
Krishna Bchari Roy v. Bunwari Ll1/i Roy and Another, ILR (I) Calcutta 144;
Sheasagar Singh and others v. Sitaram Sing]} and others. 24 Indian Appeals 50;
Ashgar Ali Khan v. Ganesh Dass, 44 Indian Appeals 213; Girdhar Mandrdc<0
and others v. Dayabhai Kalabhai and others, TLR (8) Bombay, 174; DwCJrkanath
Roy v. Ram Clwnd AiC/1 and others, JLR (26) Cal.. 428; Dalip Narain Sin1di v.
Deokinandan Prasad Singh, AI.R. (1939) Patna 519 and Ramagya Prasad Gupta
and others v. Mur/i Prasad and others, A.l.R. 1974 S.C. 1320, referred to·
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KOSHAL PAL v. MOHAN LAL (Goswami, I.)
829
(Per N. L. U111walia, J. dissenting)
A
The appeal must be dismissed, because, the 2nd suit was not barred by
res judicata.
[844-D-E]
.
(I )(a) The finding of the trial Court that the defendants were in adverse
possession of the house, in the first suit, was obliterated by the High Court and
th>zre was no final decision on the question in the first suit, In the judgment
of the first appellate Court in that suit, whep observations were made that the
trial Court unnecessarily tried the issue of adverse possession. the observation
B
was made in respect of _aJl the defendants including defendants 2 and 3,
That
issue though decided by the trial Court, was thought unnecessary by the first
appellate Court. The words "as well' in the judgment of the first appel!ate
Court show that the ground of limitation against defendants 2 and 3 was only
an additional one.
The High Court, in second appeal, rested its judgment only
on the basis of the finding that there was no relationship of landlord and
tenants between the parties .. Although the High Court did not record anY
finding expressly on the special ground taken-that the dismissal of the appeal
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against defendants 2 and. 3 on the ground of limitation was erroneous-it
must be deemed to have done so when it maintained the di>missal of the suit
against all the defendants on the ground of non-establishment of the fact of
their being tenants in the house. f844C, 843E-G]
(b) The first appellate Court, in the first suit, did ·not intend to pass any
inconsistent decrees and did not make anv distinction between the case of
defendants 2 and 3 who were minors and ·that of defendants 1 and 4, their
brother and mother, on the question of' their acq\liring title by adverse possesD
sion.
[843E·F]
(c) The contention of res judicata, if it had any substance, was ava·ilable
to defendant~ 2. and 3 even in the High Court. It could have been argued that
there was a finality of the decision on the question of adverse possession in the
judgment of the trial Court i.n the, first suit, as far as defendants 2 and 3 were
concerned.
[844AJ
(2) The issue regarding plaintiff's title was not decided in the first suit even
by the trial Court. The decre'e of possession in the second suit, on the ground
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of title, on which there was no final decision iu the earlier litigation, and on
the ground of the plaintiff's right to possession is·, therefore, not vitiated on the
ground of res judicata. f844C-DJ
Sheosagar Singh and others v. Sitaram Singh and others, 27 Indian Appeals.
50; Ashgar Ali Khan v. Ganesh Dass, 44 Indian Appeals 213 and Venkataratnama & others v. M. Kris/mama and others, A.LR. 1921, Mad. 21, applied.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 175 of 1968.
Appeal by special leave from the judgment and order dated the
21-11-1967 of the High Court of Allahabad in second appeal No. 1795
of 1965.
S. K. Mehta, M. Qarnaruddin, K. R. Nagaraja and P. N. Puri for
the appellants.
Sarjoo Prasad, Miss Uma Mehta, Mr. and Mrs. S. K. Bagga and
Raj Kumar Mehta, for the respondent.
The Judgment of K. K. Mathew and
P. K.
Goswami, JJ. was
delivered by Goswami, J. N. L. Untwalia, J. gave a dissenting Opinion.
GOSWAMI, J.-In this appeal by special leave from the. judgment
and decree of the Allahabad High Court the· only question that is
raised relates to the plea of res judicata.
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SUPRHIE COURT REPORTS
[1976] 2 S.C.R.
The facts so far as material for the purpose of this appeal are as
follows :-
The plaintiff (respondent No. 1 herein) claims to be the adopted
son of o~e Param Lal who is the original -0wner of the premises in
suit.
Ram Saha;i is the father of defendants. 1 to 3 and husband of
defendant 4.
Both Param Lal and Ram Sahai died some time in
1946. The plaintiff brought a suit being 0. S. No. 114 of 1952 in
the court of the Munsif of Etah, Uttar Pradesh, against defendants "1
to 6. · The allegations in the plaint were that defendant No. 5, who
is the maternal uncle of defendants 1 to 3 and brother of defendant 4
executed a rent note on November 13, 1946, on behalf of defendants
1 to 4 in favour of the plaintiff. Since they were in arrears of ~ent
for nearly 2t years the suit was instituted for rent and possession by
eviction of the defendants. Defendant No. 5 did not enter appearance
to contest the suit. The defence of defendants 1 to 4 was that defendant No. 5 never executed any rent note on their behalf in favour of
the plaintiff.
They disclaimed tenancy and asserted their own title
to the premises in suit by adverse possession.
The trial court, inter alia, framed the following issues in suit No.
114 of 1952 :-
"Issue No. 3 : Is the suit barred under articles 142 and
144 of the Limitation Act ?
Issue No. 8 : Whether the suit against defendants 1 to 4
is barred by time ?"
Apart from depending on th~ rent note, evidence was led by the
plaintiff in the trial court in that suit to establish that Ram Sahai was
a tenant under Param Lal and the former executed rent notes, Exts.
29, 30 and 31, in favour of the latter. The trial court refused to rely
upon these rent notes a,nd even characterised these as suspicious documents.
The trial court held that defendant 5 did not execute the
rent note on behalf of defendants 1 to 4 and also found that -
"the plaintiff has failed to prove that Param Lal and
after him the plaintiff has been in possession of the kothi in
dispute within. twelve years of the suit .... In view of these
reasons I hold that it has not been proved that Ram Sahai
and after him the defendants 1 to 4 are in occupation of the
house in dispute as tenants of the plaintiff and so they are
clearly in adverse possession of the house in dispute".
The trial court dismissed the suit No. 114 of 1952 against all the
ti
defendants.
P'
The lower appellate court dismissed the plaintiff's appeal arising
out of O.S. No. 114 of 1952 (C. A. No. 152 of 1956) against defenH
dants 2 an!d 3 on the ground that the appeal was barred by limitation.
We are not concerned here with the correctness of the reasons for
dismissing the appeal against defendants 2 and 3 (appellants 2 and
3 herein) on the ground of limitation. Indeed in considering the plea
;
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KOSHAL PAL v. MOHAN LAL (Goswami, !.)
831
of,res judicata correctness of the finding is not in issue .. The findings
arrived at in the adjudication have to be taken at thelf face value
between the parties.
The appeal was also dismissed by the lower appellate court against
defendants 1 and 4 on merits after making certain observations which
wi11. be dealt with later.
· The lower appellate court, however, allowed the appeal against
the non-contesting defendant No. 5 and decreed that the defendant
No. 5 "shall vacate the house in suit on his own account and pay a
sum of Rs. 714/- as the arrears of rent in respect thereof for the
period in suit to the plaintiff". The appeal was also dismissed against
defendant No. 6, Kalawati, since dead, and we are not concerned with·
her and her heirs in this appeal at all although the latter have been
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imp!eaded as parties, the particular portion of the premises having
been, admittedly sold away by the plaintiff to one Mathura Prasad.
I
The ·judgment of the lower appellate conrt in C.A. No. 152 of
1956 was delivered on September 17, 1958.
Later on the plaintiff filed a second suit (No. 6 of 1959) in the
same court of the Munjsif of Etah claiming declaration of right and
title to and possession of the identical premises. The plaintiff and the
defendants are identical in the second suit.
The Sllit was decreed by
the trial court and affirmed by the lower appellate court. Both the
courts concurrently held-
( 1) that Param Lal was the owner of the house.
(2) that Mohan Lal was the adopted son of Param LaT.
(3) that Ram Sahai was the tenant of Param Lal and
therefore, defendant Nos. 1 to 4 were also tenants
of the premises in dispute.
The High Court dismissed the second appeal of the defendants (No.
1795 of 1965) arising out of this suit.
Hence this appeal by special
leave.
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The High Court in Second Appeal No. 4658 of 1958 arising out
of O.S. No. 114 of 1952 at the instance of the plaintiff substantially
dismissed the same except that it slightly modified the decree of the
lower appellate'court only with regard to the quantum of future dilmages
against defendant No.
5. There is no further appeal by the plaintiff
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from the judgment and decree in the second appeal 4658 of 1958 tcr
this Court.
As adverted to earlier, it is true that the High Court observed in
S.A. No. 4658 of 1958 that "as regards the question of adverse possession the lower appellate court held that it did not arise and, therefore,
n:o finding was given on that point". We will assume that the obserH
vation is correct. Basing upon the aforesaid observation of the High
Court and such of those as are relevant on the particular point in the
judgment of the lower appellate court, Mr. Sarjoo Prasad, on behalf
'8
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SUPREME COURT REPORTS
[1976] 2 S.C.R.
of the first respondent, i111 answer to the plea of the appellants, submits
that no question of res judicata would arise as there was no finding
of the lower appellate court in the earlier suit regarding the plaintiff's
title to the premises or with regard to the adverse possession of the
defendants.
The learned counsel submits that the finding of the trial
court with regard to adverse possession of the defendants became
non est in view of the finding of the lower appellate court which was
even noticed by the High Court, as mentioned above. Both questions,
says counsel, are open.
·
It will be ordinarily true that once there is an appeal against a
judgment, the appellate order alone will be operative.
Mr.
Sarjoo
Prasad is, however, faced with a peculiar difficulty here, in that,
on
dismissal of the plaintiff's appeal by the lower appellate court, as timcbarred against defendants 2 and 3, so far as these two defendants
were concerned, the trial court's judgment became final between them
and the plaintiff.
The lower appellate court having dismiss.::d the
plaintiff's appeal against them has affirmed this position.
The High
Court in the second appeal did not do anything to the contrary with
regard to the appeal against defendants 2 and 3.
It is, therefore, clear
that so far as the appellants 2 and 3 in this appeal arc concerned the
fin!ding of the trial court that they had acquired title to the premises
by adverse possession stands copduded and these two appellants can
legitimately raise the plea of res judicata in the subsequent suit which
is the subject matter of appeal before us.
So far as defendants 2 and 3 of the earlier suit were concerned the
finding of the trial court that they had acquired title to the premises
by adverse possession had become conclusive between the parties
at
the
time when the matters came to the High Court in second
appeal.
At any rate the appellants 2 and 3 (who were defendants
2 and 3 in the earlier suit) can definitely claim in this Court that so
far as they are concerned with regard to their title to the premises by
adverse possession there is a clear findinig in their favour by the trial
court which was never disturbed by any court in appeal and the same
is binding on the plaintiff.
Besides, we find that in the Memorandum of appeal before the
High Court in S.A. No. 4658 of 1958 the plaintiff had taken a ground
that "the lower appellate court erred in law in dismissing the appeal
against defendants 2 and 3 on the ground of limitation" (ground No.
5 at page 324 of the paper book, volume II) . The High Court, however, did not record any decisioni on this point. It is, therefore, open
to the appellants 2 and 3 before us to call in aid the finding of the
trial court in their favour that they had acquired title to the premises
by adverse possession since that finding remains operative between
the plaintiff and the said two defendants .
The position might have been different if the
plaintiff in O.S.
No. 114 of 1952 had merely relied upon the rent note dated November
13. 1946, said to be executed in his favour by defendant No. 5 on
behalf of defendants 1 to 4 i~ the earlier suit.
The plaintiff would
1
KOSHAL PAL v. MOHAN LAL (Goswami, !.)
833
then bave a different character from that of his deriving title from
his adoptive father, Param Lal. Tenancy of the defendants also would
have been de hors the earlier tenancy of Ram Sahai under Param Lal.
It could, then, be said that in the first suit the question of his ,title to
the property was absolutely irrelevant and that he would succeed or
fail on the rent ,note from which he would establish a relationship of
landlord and tenant between him and the defendants without any refcre,nce to title to the property or to his relationship with Param La1
and consequently to Ram Sahai's relationship with Param Lal. That
is exactly what Mr. Sarjoo Prasad strenously urges us to assume.
We are afraid we cannot.
On the other hand, we find the plaintiff himself did not adopt that
course in the first suit. The plaintiff joined issue with the defendants,
without protest, with regard to _th_e alternative case of tenancy of the
father of defendants 1 to 4 under his adoptive father and produced
earlier rent notes executed by Ram Sahai in favour of Param Lal. This
evidence was admissible and necessary in view of issues 3 and 8 earlier
quoted.
The findings of the trial court, as referred to above, were in
favour of defendants 1 to 4 and against the plaintiff on the point.
Now, in the subsequent suit, out of _which the present appeal has
arisen, he has based his right to evict on the ground that he is the
adoptcJ son of the original owner and on his death he became the
owner of the premises and similarly Ram Sahai, the father of the
defendants, was also a tenant under Param Lal and on Ram Sahai's
death, the defen:dants 1 to 4 became tenants under Param Lal and
after his death, of the plaintiff. The difficulty has arisen because the
very matter about Ram Sahai's tenancy under Param Lal had been
gone into in the earlier trial a,nd the finding was reached by the trial
court in favour of defendants 1 to 4 that Ram Sahai was not ten,ant
under Param Lal and hence they were also not tenants
under the
plaintiff.
The lower appellate court did not expressly disturb' this
finding b~t observed that the trial court "probed into unnecessary
matter~". E'ven so, the suit stood dismissed against defendants 1 to 4.
The lower appellate court decreed the suit for rent and ejectment against
defendant No. 5 only who "shall vacate the house in suit on his own
account".
.
We may observe, in passing, that admittedly defendant No. 5 was
never in occupation of the premises in suit.
Hence this decree for
eviction of defendant 5 from the premises in O.S. No. 114 of 1952
is in effect a paper decree.
lt is true, as the High Court observed in second appeal No. 4658
of 1958 that "as regards the question of adverse possession the lower
appellate court held that it did not arise and, therefore, no finding
was given on that point". If this observation is held, as we have,
as displacing the finding with regard to the adverse possession of the
defendants, this will be only true relating to adverse possession by
defendants 1 and 4 and will not bind defendants 2 and 3 in whose
favour there had already been a conclusive finding of the trial court
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SUPREME COURT REPORTS
[1976] 2 S.C.R.
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and which was not disturbed by the lower appellate court or in the
second appeal No. 4658 of 1968.
The second suit so far as appellants 2 and 3 are concerned must, therefore, be held to be barred by
res judicata.
We are prepared to give effect to the High
Court's
afon:said observation about the lower appellate court's judgment in
favour of defendants 1 and 4 against whom alone plaintiff's appeals
were disposed of on merits.
The case of defendants 2 and 3 stands
B
on a different footing.
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It was contended on behalf of the respondent that the scope or
the subject matter of the earlier suit is different from that in the
second suit.
It is, however, difficult to accept this submission.
In
· the earlier suit the plaintiff prayed for possession of the premises in
suit by evicting the defendants who held the premises
as
tenants
under the plaintiff on a rent note executed in his favour.
Alternatively the plaintiff sought the same relief for possession of tl:e premises
relying on the status of the defendants 1 to 4 as tenants derived from
the position of their father being ·a tenant under the plaintiff's adoptive father.
In either case the relief was claimed
on the
plea of tenancy of the defendants.
Both these pleas were rejected by the trial court and the defendants 1 to 4 were held to mature
their title by adverse possession.
In the second suit out of which the
present appeal has arisen, although the suit is one for declaration of
title to the premises and for possession, the alternative plea set up in
the earlier suit has again been reagitated to defoat the plea of adverse
possession set up by the defendants and this time the court found in
favour of the plaintiff.
It is well established t)Jat if a matter directly and
substantially
in issue in an earlier suit of competent jurisdiction had been finally
adjudicated upon the matter becomes res judicata between the same
parties with regard to the identical subject matter in a subsequent
suit.
As the Privy Council observed in Krishna Behari Roy v.
Banwari Lall Roy and Another (11 ) "where a material issue has been
'tried and determined between the same parties in a proper suit; and
in a competent Court, as to the status of one of them in relatien to
the other, it cannot be again tried in another suit between them"_,
Here the parties are the same and the property for possession of
which tile suit was filed is also identical. The only difference is that
in the second suit title to the property is brought in issue which was
not an adjudicated issue in th.e first suit.
That, however,
is
not
material for the present purpose since the plaintiff's adoptive father
has been admittedly out of possession of the premises
since
abont
1938.
It is not the plaintiff's q1se that he or his father was in physical possession of the premises
within the
requisite period prior
to the institution of the suit. The plaintiff, on the other hand, seeks
to rely upon constructive possession through
the
defendants
as
tenants in the second trial.
The matter relating to the status of tl1e
defandants as tenants is, therefore, dircetly and substantially in issue
between the parties in both the suits for the reliefs claimed in them.
'(1) J.L.R. 1 Calcutta 144.
'
t
1
KOSHAL PAL v. MOHAN LAL (Goswami, J.)
835
,it is. therefore, not possible to hold that the question of even ~cri
vative tenancy of the defendants was not directly and substantially
jn issue in both the suits.
It cannot be said that the adverse decision against the plaintiff
with regard to the status of the defendants as
derivative
tenant~,
which was necessary in order to hold that the defendants had acquired title by adverse possession, was only collaterally or incide1?"tally
made in the earlier suit.
For the only relief in the manner claimed
in the earlier suit the decision with regard to the issue of adverse pos-
.scssion was directly material and relevant in that suit.
The submis-
-sion that the scope of the two suits is different is, therefore, devoid
·Of substance.
Wc arc unable to .subscribe to the view that defendants 2 and 3
·could raise the plea of res judicata before the High
Court.
The
decision of the lower appellate court regarding the plaintiff's appeal
being barred by limitation was again res sub-iudice in the High Court
in S:A. No. 4658 of 1958. s. A. No. 4658 of 1958 was heard together with s.A. No. 1795 ~f 1965 resulting in a common judgment.
When second appeals arising out of two suits filed by the plaintiff are treated as connected appeals and disposed of by the
High
Court by a common judgment there is, ordinarily, no
question
of
invoking the plea of res judicata before the High Court as the findings
in the earlier suit are not till then final for the purpose of the second
suit.
That is the exact position here.
The plaintiff having not appealed against the decision in S.A. No.
4658 of 1958, defendants 2 and 3 could for the first time raise the
plea of res fudicata only in this court in this appeal after the issue of
adverse possession in respect of defendants 2
and 3
(appellants
2 and 3 herein) vis-a-vis the plaintiff (first respondent)
had
been
finally decided and set at rest in the High Court in S. A. No. 4658 of
l958.
A
B
c
D
E
The Privy Council's decisions in Sheosagar Singh and others v.
Sitaram Singh and others('1) and Ashgar Ali Khan v. Ganesh Dass(")
F
<lo not support the first respondent in the peculiar history of the litigation in the present case.
Ev~n in, Sheosagar Singh's case (supra) while dealing with the
·express10n '·heard and finally decided", the Privy Council observed
at page 5 8 as follows :
.
"If there had been no appeal in the first suit the decision of the Subordinate Judge would no doubt have given
rise to the plea (of res judicata) ".
This is exactly the position in the case at hand.
When there was no appeal in the eye of law by the first respo!T•
<lent against the appellants 2 and 3 tci the lower appellate court from
the trial court's decree in 0.S. No. 114 of 1952, the appeal by the
first respondent against other parties to the lower
appellate
court
(1) 24 I.A. 50
(2) 44. I.A 213.
G
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836
SUPREME COURT REPORTS
[1976] 2 S.C.R.
A
could not destroy the finality of the trial court's decision so far as the
appellants 2 and 3 were concerned.
B
c
D
The plaintiff took another opportunity in the High. Court by raisiing the question there in S.A. No.
4658 of 1958
but did not
succeed.
Thei:efore the finality of the
decision
with
regard
to
adverse possession so far as the appellants 2 and 3 were concerned
was not disturbed even in the High Court.
.
Even in Ashgar Ali Khan's. case (supra) which followed Sheo-
.mgar Singh's case (supra), the Privy Council at page 216 observed :
"lt is clear, however, that altqough the two first courts
had found against his allegation, the final Court of Appeal
refused to determine the issue."
We are not required to consider here what would happen if then:
were also a competent appeal against defendants 2 and 3 before the
lower appellate court and that court had refused to decide the question in their presence.
As a matter of fact we are l;lolding in favour
of defendants l and 4 since so far as they are concerned the finality
of trial court's decision has been held to be destroyed.
lt is submitted by the first respondent that adverse possession o[
defendants 2 and 3, who were minors, is not independent
IDf
th<.>
t
mother or eldest brother (defendant 1 and 4 respectively) and
on
>-
E
failure of the latter's plea of adverse possession the said plea will not
be available in favour of the former.
We are unable to accept this
submission for three reasons :
..
First, the minors' interest even lawfully represented by a party is
separate and distinguishable from that party's individual interest, if
any, in a particular action.
Second, even in the first suit upto the
High Court the plaintiff succeeded in the eviction suit only against defendant 5 and "on his account" alone.
Third, the second suit of eviction against defendant No. 6 or her 'assignees from a particular porF
tion of the premises in suit was abandoned.
There is, therefore, no
difficulty to grant a decree for a partial possession.
G
H
From the above it also follows that the principle applicable in
,
abatement of appeals resulting in possibility of inconsistent decrees,
as sought to be relied upon by the appellants, is not at all attracted
in the present case.
Our attention was drawn to several decisions relating to the application of the principles of res judicata, but we do not find any of the
decisions in support of the contention advanced by the first respondent in the peculiar facts and circumstances re.vealed in this appeal.
For example. in Girdhar Manordas and other v. Dayabhai Kalabhai and others(1) which is a Full Bench decision it was held by the
majority in that case that the pJ_aintiffs were not barred by the judgment in the former suit.
A perusal of the facts of that suit
will
(!) LL. R. 8 Bombay 174.
KOSHAL PAL v. MOHAN LAL (Untwalia, !.)
83 7
clearly show that in the first suit the plaintiffs lost the suit for evicA ·
tion of the Q1;fendants on the g~ound that the alleged leases were not
proved.
The plaintiffs gave up the battle on that pl~a an~ later on
brought another suit to evict the defendants on th~ baslS of tit!~.. 1:hc
decision is clearly distinguishable from the pecuhar facts of ht1gat10n
with which we are concerned in the present appeal.
. Similarly the decision in Dwarkanath Roy v. Ram Chand Aich
B
and others(I) is not of any assistance to the first re.sp?ndent:
In
that case a decision in a suit for rent brought by a plamtlff agamst a
person who is alleged to have been his tenant in respect of certain
land was held not to operate as res judicata in a subsequent suit
brought by the same plaintiff for establishment of his title to the land
not only against the person whose title as landlord the tenant-defendant had set up in the earlier rent suit.
C
The. same observation would apply to the decision in Dalip Narain
Singh v. Deokinandan Prasad Singh( 2 ) relied upon by the first respondent.
.
The first respondent also drew our attention to the decision in
Rqmagya Prasad Gupta and others v.
Murli Prasad and otlzers( 3 )
in which one of us was a party.
We, however, find that the ratio
of the decision is not at aH of any aid to the respondent.
This Court
held in that appeal that certain appeals which arose out of a subsequent suit were not barred by res judicata since the subject matter
of the earl.ier suit and that of the subsequent
suit
were
entirely
. different.
ln the result the appeal is partly allowed, that is to say, the suit
No, 6 of 1959 stands dismissed against defendants 2 and
3
Ethe
appellants 2 and 3 herein) and the decree passed
against
others
stands.
There will be no order as to costs in this appeal.
UNTWALIA, J.
I regret my inability to concur in the
judgment
delivered by my learned Brother Goswami, J.
for
himself
and
Mathew, J.
I proceed to give my separate judgment.
This appeal by special leave arises out of Original Suit No. 6 of
1958 filed by Respondent No. 1 in the Court of the Munsif of Etah
in Ottar Pradesh. In the said suit the four appellants were defendants 1 to 4 and respondents 2, 3 and 4 were respectively defendants
5/l, 5/2 an.ct 6.
Since ~he only point pressed by the appellants
in
t 111s appeal is that the tnal of the suit was barred by the law of res
judicata engrafted in section 11 of the Code of Civil Procedure
the
history of the earlier suit being Original Suit No. -114 of 195:2 filed
by respondent no. 1 in the same Court will have to be stated.
The dispute relates to an Ahta (a house w[th compound) situated
in the town of Aliganj, District Etah.
One Dileram was the owner
of th;s house.
He transferred it to one Kirpa Ram by a registered
D
E
F
G
(1) T.L.R.26Calcutta428.
·
v (2) A.LR. 1939 Patna 519.
H
(3) A.T.R.1974S.C. !320 ..
12~Ll 59SCI/76
A
18
c
D
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F
G
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838
SUPREME COURT REPORTS
[1976] 2 s.c.R.
sale deed dated March 7, 1914. After the death of Kirpa Ram, his
son Hemraj became the owner of the house and he sold it away to
Bohre Param Lal by a registered sale deed dated June
11,
192
Param Lal died in the year 1946.
Respondent no. 1 claims to be
the owner of the house as the adopted son of Param Lal.
Respondents 2 and 3 are daughters of one Kalawati and were substituted in
her place on her death.
Kalawati, claiming to be
the
daughter's
daughter of Dileram, sold a small portion of
the Ahta to one
Mathura Prasad by a sale deed dated July 31, 1951.
Respondent no. 1 filed Suit No. 114 of 1952 in the Court of
Munsif of Etah and alleged that respondent no.
4,
implcaded
as
defendant no. 5 in that suit, was the brother of appellant 4-widov·
of one Ram Sahai and maternal uncle of respondents 1 to 3, sons of
Ram Sahai and that he had executed a rent note dated
November
13, 1946 in favour of respondent no. 1 taking the house on rent on
behalf of the appellants.
They had sublet a portion to Kalawati wh~
was impleaded as defendant no. 6 in that suit.
Kalawati had
unauthoriscdly transferred the portion in her possession
to
Mathura
Prasad.
The tenancy of the appellants (defendants 1 to 4 in that
suit also) and others was terminated by a notice to quit.
The suit
was filed for their eviction and certain other reliefs of realization of
rent etc.
Respondent no. 4 did Hot contest that suit. It was contested by
the appellants and Kalawati.
The appellants denied that they were
the tenants of the house under respondent no. 1.
They denied that
he was the owner of the house and pleaded that they had acquired
title by adverse possession.
The learnt;d Munsif who tried the suit
framed several issues including the issues as to whether the appellants
were the tenants of the house and Kalawati was their sub-tenant and
whether the suit was barred under Articles 142 and 144 of the Limi·
tation Act, 1908.
The Munsif found that Kalawati was the daughter's daughter of
Dileram and she had been living in the small portion which she had
sold to Mathura Prasad for a long time; therefore, the suit was barred
under Articles 142 and I 44 in respect of that portion.
I may lcav~
out of consideration the dispute in regard to this small portion
because Mathura Prasad was not impleadcd as a defendant either in Lhc
first suit or in the second suit.
In the second suit. respondent no. 1
stated that he had sold the small disputed portion to Mathura Prasad.
The dispute regarding this port_ion is, therefore, at an end.
We arc.
in this appeal, concerned with the substantial portion of the
house
and the compound which has been in occupatfon of the appellants.
Although the Munsif framed issue no. 1 as to whether respondent
no. 1 was the owner of the house, he did not decide this
issue
b~
cause while deciding the other issues, he held that it was not proved
that the appellants were the tenants of the house, rather, they had
been in adverse possession.
Respondent no. l filed Civil Appeal No. 182 of 1956.
Tt wa~
disposed of by the Civil Judge of Etah on
September 17. 1958.
•
I" •
r
' \
KOSHAL PAL v. MOHAN LAL (Untwalia, !.)
8 39
The appeal against respondent no. 4 who was defendant no. 5 in that
A
suit was allowed and the suit for ejectment as against him and for
certain other reliefs for realization of rent etc.
was
decreed.
The
Civil Judge observed in the beginning of his judgment:
"that the learned Munsif did not appreciate the parties'
pleading at all.
He probed into unnecessary matters
and
did not give his finding on the matter!\ in issue. . . . . . . .
B
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