# SRI GANGAI VINAYAGAR TEMPLE & ANR v. MEENAKSHI AMMAL & ORS

- **Citation:** [2014] 12 S.C.R. 845
- **Court:** Supreme Court of India
- **Decided:** 2014-10-09
- **Case number:** Civil Appeal No. 4227 of 2003
- **Bench:** Anil R. Dave, Vikramajit Sen, Pinaki Chandra Ghose
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sri-gangai-vinayagar-temple-anr-v-meenakshi-ammal-ors-29604
- **Pages:** 30

## Headnote

A
B
Code of Civil Procedure, 1908 - Or. 2, r. 2 and s. 11 - Res
judicata - Applicability of - Plea of appellant-trust through its
C
trustees that respondents/tenants of the demised property were
barred by principle of res judicata from challenging the
findings of trial court especially the trust's ownership of the
demised property, since the tenants filed only one appeal, i.e.
arising from one suit (O.S.6178), without assailing identical
D
conclusions arrived at by trial court in two other suits (0.S. 51
78 and 7178) - All the three suits were connected, heard
together, and decided by the trial Court by way of a common
judgment, but by three separate decrees - Held: Plea of
appellants tenable - Pleadings on behalf of the tenant were
E
commori in all three suits - Decree, arising from the connected
suits and the common judgmeTJt, if not assailed,
metamorphoses into the character of a "former suit" - Having
failed or neglected or concertedly avoided filing appeals
against the decrees in O.S. 5178 and O.S.7178, the cause of F _
plaintiff tenants was permanently sealed and foreclosed since
res judicata applied against them.
Res Judicata - Raison d'etre and applicability of -
Discussed.
·
Allowing the appeal, the Court
HELD: On a holistic and comprehensive reading of
the pleadings of the Tenant in all the three suits, it is
G
845
H
846
SUPREME COURT REPORTS
[2014] 12 S.C.R.
A inescapable that the Tenant had intendedly, directly and
unequivocally raised in its pleadings the question of the
title to the demised premises and the legal capacity of the
Trustees to convey the lands to the Transferees. This is
the common thread that runs through the pleadings of
B Tenant in all three suits. It is true that if O.S.5178 was a
suit for injunction simpliciter, and in the wake of the
stance of the Trustees and Transferees that no threat had
been extended to the Tenants regarding their ouster, any
reference or challenge to the ownership was wholly
c irrelevant. But the ownership issue had been specifically
raised by the Tenant, who had thus caused it to be
directly and substantially in issue in all three suits. So far
as the Suit Nos.6/78 and 7178 are concerned, they were
also suits sirripliciter for the .recovery of rents in which
0 the defence pertaining to ownership was also riot
relevant; no substantial reason for the Tenant to file an
appeal in o.s. 6178 had· arisen because the monetary part
of the decree was relatively insignificant. Obviously, the
Tenant's resolve ·was to make the ownership the central
E dispute in the litigation and in these circumstances
cannot be allowed to equivocate on the aspect of
ownership. Logically, if the question of ownership was
relevant and worthy of consideration in O.S. 6178, it was
also relevant in O.S. 5178. Viewed in this manner, it is an
inescapable conclusion that an appeal ought to have
F been filed by the Tenant even in respect of O.S. 5178, for
fear of inviting the rigours of res judicata as also for
correcting the "dismissal" order. The Tenant had been
completely non-suited once it was held that no cause of
action had arisen in its favour and the suit was
G 'dismissed'. Ignoring that finding and allowing it to
become final makes that conclusion impervious to
change. Having failed or neglected or concertedly ·
avoided filing appeals against the decrees in O.S.5/78
and O.S.7/78 the cause of the Respondents/Tenants was
H
SRI GANGAI VINAYAGAR TEMPLE v. MEENAKSHI
847
AMMAL
permanently sealed and foreclosed since res judicata
A
applied against them. [Paras 23, 24] [872-F-H; 873-A-D;
874-D, E]
Premier Tyres Limitec:J vs. Kera/a State Road Transport
Corporation 1993 (Suppl.) 2 SCC 14.6; Lonankutty vs.
B
Thomman (1976) 3 SCC 528: 1976 (0) Suppl.· SCR 74;
Narayana Prabhu Venkateswara Prabhu vs. Narayana Prabhu
Krishna Prabhu (1977) 2 SCC 181: 1977 (2) SCR 636;
Sheodan Singh vs. Daryao Kunwar (1966) 3 SCR 300;
Chitivalasa Jute Mills vs. Jaypee Rewa Cement (2004) 3 SCC
85; Sajjadanashin Sayed vs. Musa Dadab

## Text

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[2014] 12 S.C.R. 845
SRI GANGAI VINAYAGAR TEMPLE & ANR.
v.
MEENAKSHI AMMAL & ORS.
(Civil Appeal No. 4227 of 2003)
OCTOBER 09, 2014
[ANIL R. DAVE, VIKRAMAJIT SEN AND
PINAKI CHANDRA GHOSE, JJ.]
A
B
Code of Civil Procedure, 1908 - Or. 2, r. 2 and s. 11 - Res
judicata - Applicability of - Plea of appellant-trust through its
C
trustees that respondents/tenants of the demised property were
barred by principle of res judicata from challenging the
findings of trial court especially the trust's ownership of the
demised property, since the tenants filed only one appeal, i.e.
arising from one suit (O.S.6178), without assailing identical
D
conclusions arrived at by trial court in two other suits (0.S. 51
78 and 7178) - All the three suits were connected, heard
together, and decided by the trial Court by way of a common
judgment, but by three separate decrees - Held: Plea of
appellants tenable - Pleadings on behalf of the tenant were
E
commori in all three suits - Decree, arising from the connected
suits and the common judgmeTJt, if not assailed,
metamorphoses into the character of a "former suit" - Having
failed or neglected or concertedly avoided filing appeals
against the decrees in O.S. 5178 and O.S.7178, the cause of F _
plaintiff tenants was permanently sealed and foreclosed since
res judicata applied against them.
Res Judicata - Raison d'etre and applicability of -
Discussed.
·
Allowing the appeal, the Court
HELD: On a holistic and comprehensive reading of
the pleadings of the Tenant in all the three suits, it is
G
845
H
846
SUPREME COURT REPORTS
[2014] 12 S.C.R.
A inescapable that the Tenant had intendedly, directly and
unequivocally raised in its pleadings the question of the
title to the demised premises and the legal capacity of the
Trustees to convey the lands to the Transferees. This is
the common thread that runs through the pleadings of
B Tenant in all three suits. It is true that if O.S.5178 was a
suit for injunction simpliciter, and in the wake of the
stance of the Trustees and Transferees that no threat had
been extended to the Tenants regarding their ouster, any
reference or challenge to the ownership was wholly
c irrelevant. But the ownership issue had been specifically
raised by the Tenant, who had thus caused it to be
directly and substantially in issue in all three suits. So far
as the Suit Nos.6/78 and 7178 are concerned, they were
also suits sirripliciter for the .recovery of rents in which
0 the defence pertaining to ownership was also riot
relevant; no substantial reason for the Tenant to file an
appeal in o.s. 6178 had· arisen because the monetary part
of the decree was relatively insignificant. Obviously, the
Tenant's resolve ·was to make the ownership the central
E dispute in the litigation and in these circumstances
cannot be allowed to equivocate on the aspect of
ownership. Logically, if the question of ownership was
relevant and worthy of consideration in O.S. 6178, it was
also relevant in O.S. 5178. Viewed in this manner, it is an
inescapable conclusion that an appeal ought to have
F been filed by the Tenant even in respect of O.S. 5178, for
fear of inviting the rigours of res judicata as also for
correcting the "dismissal" order. The Tenant had been
completely non-suited once it was held that no cause of
action had arisen in its favour and the suit was
G 'dismissed'. Ignoring that finding and allowing it to
become final makes that conclusion impervious to
change. Having failed or neglected or concertedly ·
avoided filing appeals against the decrees in O.S.5/78
and O.S.7/78 the cause of the Respondents/Tenants was
H
SRI GANGAI VINAYAGAR TEMPLE v. MEENAKSHI
847
AMMAL
permanently sealed and foreclosed since res judicata
A
applied against them. [Paras 23, 24] [872-F-H; 873-A-D;
874-D, E]
Premier Tyres Limitec:J vs. Kera/a State Road Transport
Corporation 1993 (Suppl.) 2 SCC 14.6; Lonankutty vs.
B
Thomman (1976) 3 SCC 528: 1976 (0) Suppl.· SCR 74;
Narayana Prabhu Venkateswara Prabhu vs. Narayana Prabhu
Krishna Prabhu (1977) 2 SCC 181: 1977 (2) SCR 636;
Sheodan Singh vs. Daryao Kunwar (1966) 3 SCR 300;
Chitivalasa Jute Mills vs. Jaypee Rewa Cement (2004) 3 SCC
85; Sajjadanashin Sayed vs. Musa Dadabhai Ummer AIR C
2000 SC 1238: 2000 (1) SCR 1095; /sher Singh vs. Sarwan
Singh AIR 1965 SC 948; and Pragdasji Guru Bhagwandasji
vs. Patel /shwar/albhai Narsibhai AIR 1952 SC 143: 1952
SCR 513 - referred to.
D
Lachhmi vs. Bhulli AIR (1927) Lah 289; Panchanda
Ve/an vs. Vaithinatha Sastrial ILR (1906) 29 Mad 333; B.
Shanker Sahai v. B. Bhagwat Sahai AIR 1946 Oudh 33 (FB);
Zaharia vs. Debia ILR (1911) 33 All 51; /sup Ali vs. Gour
Chandra Deb 37 Cal LJ 184: AIR 1923 Cal 496; Mrs.
E
Getrude Oastes vs. Mrs Mil/icerit D'Si/va ILR 12 Pat 139 :
AIR 1933 Pat 78; Asrar Ahmed vs. Durgah Committee, Ajmer
AIR 1947 PC 1 and Sheoparsen Singh vs. Ramnandan
Prasad Singh (1915-16) 43 l.A.91 - referred to.
Hoag vs. New Jersey (1958) 356 U.S. 464 - referred to.
Case Law Reference:
. 1993 (Suppl.) 2 sec 146 referred to
Para 5
1976 (0) Suppl. SCR 74
referred to
Para 6
1977 (2) SCR 636
referred to
Para ·6
(1966) 3 SCR 300
referred to
Para 19
AIR (1927) Lah 289
referred to
Para 20
F
G
H
A
B
c
D
E
848
SUPREME COURT REPORTS
[2014] 12 S.C.R.
ILR (1906) 29 Mad 333
referred to
Para 20
AIR 1946 Oudh 33 (FB)
referred to
Para 20
ILR (1911) 33 All 51
referred to
Para 21
AIR 1923 Cal 496
referred to
Para 21
AIR 1933 Pat 78
referred to
Para 21
(2004) 3 sec 85
referred to ·
Para 22
2000 (1) SCR 109~
referred to
Para 23
(1958) 356 U.S. 464
referred to
Para 23
AIR 1965 SC 948
referred to
Para 23
AIR 1947 PC 1
referred to
Para 23
1952 SCR 513
referred to
Para 23
(1915-16) 43 l.A.91 ·
referred to
Para 23
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4227 of 2003.
From the Judgment and Order dated 06-01-2003 of the
High Court at Madras in LP.A. No. 17 of 1998.
Jaideep Gupta, Sanjay R. Hedge, S. Nithin, Kunal Chatterji
F for the Appellanis.
K. Rama Moorthy, Surendra Nath, Govind Manoharan,
Senthil Jagadeesan, Shruti Iyer, V. Ramasubramanian for the
Respondents.
G
The Judgment of the Court was delivered by
H
VIKRAMAJIT SEN, J. 1. A maze of facts and events, and
a labyrinth of legal conundrums ·confront us in the course of the
determination of this Appeal. Essentially, it is· the ambit and
sweep of the principle of res judicata that is at the centre of
SRI GANGA! VINAYAGAR TEMPLE v. MEENAKSHI 849
AMMAL [VIKRAMAJIT SEN, J.]
controversy. Additionally, Order II Rule 2 of the Code of Civil
A
Procedure ("CPC" for brevity), which enshrines but another
complexion of res judicata, also requires to be cogitated upon.
The contention of the Appellant through its Trustees (hereafter
referred to as 'Trust') is that the Respondentsrrenants ('Tenants'
for brevity) of the demised property are barred by the principle
B
of res judicata from challenging the findings of the Trial Court
especially the Trust's ownership of the demised property, since
the said Tenants have filed only one appeal, i.e. arising from
O.S.6/78, without assailing identical conclusions arrived at by
the Trial Court in O.S.5/78 and 0.S.7/78.
c
2. The uncontroverted facts are that the husband of the first
Respondentrrenants (namely, Kannaiya Chettiar along with
another person Venkatarama Keddiar) the suit land on lease
from Sethurama Chettiar on 1.3.1953 for a period of 12 years
on a monthly rent of Rs.150/-. The Tenants were permitted to
D
construct a cinema theatre on the sait land at their own cost,
which they have done in the name and style of 'Raja Talkies',
which is still in existence. In 1959 one of the partners died,
resulting .in the husband of Respondent No.1 assuming sole
proprietorship of 'Raja Talkies'. On 8.11.1967 a fresh
E
Registered Notaire Lease Deed was executed for a period of
15 years commencing from 1.1.1968 between the husband of
Respondent No.1 and the Appellant Trust, Gangai Vinayagar
Temple through its Trustee's President namely, Shri Sethurama
Chettiar. Consequent on the death of the husband of
F
Respondent No.1, she continued as the tenant along with her
children as legal representatives of her late husband: It is also
not in dispute that the Trust sold the suit property to Sarvashri
P.Lakshamanan, P.Vadivelu and .P.Saibabha who were
impleaded by the Tenants as Defendants 7 to 9 in O.S. 5/78.
G
The Tenants were informed of this transaction on 14.10.1976,
calling upon them to attorn to the new owners. The
repercussion was that in 1976 itself, the Tenants filed O.S.5/
78 (re-numbered) in which they had assailed the sale of the suit
land on the predicatiori that the legal formalities necessary for
H
850
SUPREME COURT REPORTS
[2014] 12 S.C.R.
A the transfer of trust property had not been adhered to as it was
a Public Trust, and further that, subsequent to the
aforementioned transaction, the Tenants (Plaintiffs in O.S.5n8)
apprehended their dispossession therefrom at the hands of the
Defendants, including Defendants 7 to 9 {hereinafter called
B
'Transfere~s'). The Prayers have been reproduced infra. In this
suit, the Trust as well as the Transferees pleaded in their
respective Written Statements that they had neither threatened
nor harboured any intention to dispossess the Tenants without
due process of law.
c
3. The sequel of this first salvo of litigation was the filing
of two suits by the Trust, being O.S.6/78 and O.S. 7/78, claiming
arrears of rent from the Tenants' (Respondent Nos. 1 to 6 before
us, in which the Transferees were not impleaded) pertaining to
the period prior to the transfer of the suit lands by them to the
D Transferees. Despite the pleadings therein as mentioned
above, o.s.5n8 came to !Se 'dismissed'. O.S.6n8 was partially
decreed; whilst O.S.7/78 was dismissed on the ground that the
alleged claim of arrears of rerit in this suit was not tenable as
the said land was part of and encompassed in the suit land
E which was the subject matter of O.S.6/78 and, accordingly, the
claim was covered and subsumed therein. The Tenants have
not filed any appeal in respect of O.S.5/78 and O.S.7/78; and
the Trust has not filed any appeal on the dismissal of their suit
O.S.7n8. All three suits have been decided, after recording of
F common evidence, by a common Judgment passed on
6.11.1982 by the Court of 2nd Additional District Judge at
Pondicherry. Pursuant to this Judgment three different decrees
have been drawn.
G
H
4. The prayers contained in O.S.5/78 read as follows:
(i)
Establishing the leasehold right of the plaintiffs and
to be in. possession of the schedule mentio.ned
property till the end of the lease period viz. 1-11983; and
SRI GANGA! VINAYAGAR TEMPLE v. MEENAKSHI
851
AMMAL [VIKRAMAJIT SEN, J.]
(ii)
For pennanent injunction restraining the defendants,
A
·their agents, servants and other representatives
from interfering with the plaintiff's peaceful
possession and enjoyment of the suit property till
1-1-1983.
(iii)
Directing the defendants to pay to the plaintiff the
8
costs of the suit; and
(iv)
Grant such other relief as this Honourable court may
be pleased to order in the circumstances of the
case.
It is. noteworthy that the Trust had not pressed for the
framing of an Issue predicated on Section 116 of the Evidence
c
Act. In the plaint in O.S.5/78, the Tenant had pleaded that the
Defendants "have no right to sell the property as the same is · D
Trust property belonging to the 1st Defendant and as such the
alienation would be totally void being a breach of trust.. ... The
alienation in favour of the Defendants 7 to 9 being void, they
have no title to the property ..... The cause of action arose on
30.6.1976 when Defendants 2 to 6 purported to convey the suit
E
property to Defendants 7 to 9 and, thereafter, when Defendants
are threatening to disturb the plaintiffs possession." Despite the
specificity of these pleadings the Tenants had ostensibly not
prayed for any relief with regard to the title of the Transferee.
Nevertheless, on careful consideration it appears to us that,
awkwardly worded though it avowedly is, the first prayer · F
endeavours to articulate this very prayer. In any event, the
pleadings are sufficient to lay the foundations for the
assumption that the Tenants were desirous of assailing the
transfer of the title of the land. That being the position, the
embargo of Order II Rule 2 CPC would become operative
G
against the Tenants. The Issue relevant for the present purposes
(the burden of proof of which was set on the Tenants) reads
thus:-
(2) Whether the suit property is not the personal property
H
A
852
SUPREME COURT REPORTS
[2014) 12 S.C.R.
of Sethurama Chettier and whether the plaintiffs are not
estopped from questioning the title' of the landlord or his
vendors.
We hasten to clarify that ·had the Tenants (in O.S. 5/78)
merely expressed a fear or apprehension of dispossession at
B the hands of the persons that had been arrayed as defendants,
either collectively or individually, without touching upon the legal
character of the suit property as well al! the legal propriety and
capacity of Trust (Defendants 2 to 6) to transfer it to the
Transferees (Defendants 7 to 9); Order II Rule 2 would not had
C -been attracted. These questions could then have been
subsequently raised in the event the new owners, namely,
Defendants 7 to 9 were to bring any action or claim before a
court of law against the Tenants. It is foe this reason that we are
unable to agree with the determination of the Division Bench
D in the Impugned Order that this Issue was not central to Suit
O.S.5/78 and that, therefore, res judicata did not apply despite
the failure of the Tenants to appeal against the verdict in o'.S.5/
78. We cannot sustain the order of 'dismissal' of the Suit O.S.5/
78 nay even the necessity of conducting a trial in that lis in the
E wake of the Defendants' averments in their Written Statement.
Ergo, it seems to us that an appeal therefrom was essential.
We also think it to be extremely relevant that the Tenants did
not assail the judgment and decree in O.S.7n8 since it was
reit~rated therein that the Trust was the private property of
F Sethuram Chettiar. This finding has therefore attained finality,
both in O.S.5/78 and O.S.7n8, which thereupon assumed the
character the "former suit". Since the Trust had also not filed
an appeal against O.S. 7/78
1 res judicata became operative
against it on two aspects - firstly that there were two tenancies
G and secondly that any arrears of rent had separately accrued
other than what was claimed in O.S.6/78.
5. It is in similar circumstances that a Coordinate Bench
had concluded.in Premier Tyres Limited vs. Kerala State Road
Transport Corporation, 1993 (Suppl.) 2 SCC 146, that the
H
SRI GANGAI VINAYAGAR TEMPLE v. MEENAKSHI
853
AMMAL [VIKRAMAJIT SEN, J.]
effect of non-filing of an appeal against a decree is that it attains
A
finality and that this consequence would logically ensue when
a decree in a connected suit is not appealed from. It permeates,
as in the case in hand, into the sinews of all suits (O.S.5/78
and O.S.7/78) since common Issues had been framed, a
common Trial had been conducted, common evidence was
B
recorded, and a common Judgment had been rendered. It
seems to us that the Division Bench had adopted the dialectic
of the challenge to the title being irrelevant in O.S.5178 in order
to distinguish and then digress from the decision in Premier
Tyres. Facially, all the factors are common to each suit, m!mely, c
the commonality of Issues, Trial and Verdict rendering any effort
to differentiate them to be an exercise in futility. A reading of
the plaint and of Issue No.2 in O.S.5/78 (supra) will make it
impossible to harbour the view that the contours of controversy
in that case concerned only the apprehension of forcible
0
dispossession of the Tenants by the Trust as well as the
Transferees. Otherwise, Issue No.2 was palpably irrelevant to
the decision in O.S.5/78 and an ignorable surplusage.
Furthermore, the dismissal of the suit, even though it was on
the specious and untenable ground that no cause of action had
arisen to justify the filing of O.S.5178, would inexorably lead to
E
the conclusion that the Tenants were, thereafter, bereft of any
right in the suit property. The dismissal of O.S.5/78, arguably,
would become fatal to the interest of the Tenant, if a pedantic·
perspective is pursued.
F
6. As outlined above, in the impugned Judgment the
Division Bench of the High Court of Judicature at Madras had
highlighted that the only question argued before it was that the
principles of res judicata applied against the Tenant since it
negligently if not concertedly did not appeal the verdict in O.S.5/ . G
78. At the threshold of its reasoning, it referred to the decision
of this Court in Premier Tyres and pithily observed that the
argument raised on behalf of the Trust would be "impeccable
·and would have to be accepted, only if the Appellant succeeds
in establishing that Issue No. 2 in O.S. 5/78 was, in fact, an
H
854
SUPREME COURT REPORTS
[2014] 12 S.C.R.
A
issue which directly and substantially arose for consideration
in that suit and that the findings had been recorded thereon in
favour of the Appellant". It would have been expected of learned
Counsel for the parties to have cited two decisions of different
coordinate Benches of this Court. namely, Lonankutty vs.
B Thomman (1976) 3 SCC 528 and Narayana Prabhu
Venkateswara Prabhu vs. Narayana Prabhu Krishna Prabhu
(1977) 2 sec 181, which throw considerable light on this
subject. Regrettably, learned Senior Counsel for the parties
have neglected to draw notice to these two precedents, even
c before us.
7. ·Lonankutty concerned a dispute between two owners
of adjacent lands. The land of the Appellant was bounded on
two sides by a river while the land of the respondents was
landlocked, which prompted the respondents to construct a
D bund with sluice-gates on the border of their lands, so that they
could draw water from the Appellant's land for the purposes of
fishing and agriculture and thereafter divert the water back
through the same land to the river. The Appellant who was
cultivating prawn-fishing on his land aggrieved by the
E construction of the bund believing it to have hampered his
prawn fishing; therefore, he filed a suit for perpetual and
mandatory injunction against the respondents. The respondents
in turn filed a suit for injunction against the appellants and
claimed rights of easement. The two suits were disposed of
F
separately by the Court of Munsif and decrees were passed in
both the suits to the effect that the respondents were to have
rights of easement only with' respect to agriculture but not for
fishing. From the decrees, two set of appeals were preferred
by both the parties, leading to four appeals altogether. The
G District Court dismissed all the appeals and thereby confirmed
the decrees. The respondents then filed second appeals
against the. decisions which arose from the appellant's suit but
no second appeal was preferred from the· appeals arising from
their own suit. Before the High Court in Second Appeal, the
H Appellant promptly pressed the preliminary objection of res
SRI GANGA! VINAYAGAR TEMPLE v. MEENAKSHI
855
AMMAL [VIKRAMAJIT SEN, J.]
judicata contending that the decrees passed by the District Court A
in the appeals arising from the respondents' suit had become
final. The High Court, however, was not impressed with that
contention, primarily keeping the case of Narhari in perspective,
and remanded the matter to the District Court after setting aside
the judgment and decree of the District Court. The District Court B
in remand confirmed the previous view taken by it, against which
the respondent again filed a Second Appeal in the High Court
which was allowed, resulting in filing of a SLP by the Appellant.
The sole and central issue canvassed before this Court was
whether the Respondents' right to divert the flow of water through c
the Appellant's land for fishing purposes is barred by res
judicata, and this Court answered in the affirmative. This Court
concluded that the Respondents, by not filing further appeals
against the decree passed by the District Court in the appeals
arising out of their own suit allowed that decision to become D
final and conclusive. It observed further:
"That decision, not having been appealed against, could
not be reopened in the second appeal arising out of the
appellant's suit. The issue whether respondents had the
easementary right to the flow of water through the E
appellant's land for fishing purposes was directly and
substantially in issue in the respondent's suit. That issue
was heard and finally decided by the District Court in a
proceeding between the same parties and the decision
was rendered before the High Court decided the second F
appeal. .... The circumstance that the District Court
disposed of the 4 appeals by a common judgment cannot
affect the application of Section 11... The failure of the
respondents to challenge the decision of the District Court
insofar as it pertained to their suits attracts the application G
of Section 11 because to the extent to which the District
Court decided issues arising in the respondents' suit
. against them, that decision would operate as res judicata
since it was not appealed against."
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856
SUPREME COURT REPORTS
[2014] 12 S.C.R.
A
8. In Prabhu, the parties were descendants of one Narayan
Prabhu. The respondent, third son among four sons of Narayan
Prabhu, filed a suit for partition against all the sons claiming
all the concerned items to be joint family property. The
appellant, the eldest son, filed a money suit only against the
B respondent on .the ground that trade of tobacco shops run by
the parties in that suit was his self-acquired property;
consequently, that he was entitled to money due on account of
tobacco delivered to the respondent's shop. The Trial Court
tried both the suits together and determined them by way of two
c decrees on the same date, holding that the shops in question
belonged to the concerned individuals. The respondent
appealed against both the decrees before the High Court, and
the two appeals were decided in continuation under separate
headings. The High Court while reversing the findings of the Trial
0
Court held the shops to be part of joint family trade in tobacco
and thus dismissed the money sμit. The appellant thereafter
approached this Court assailing the judgment and decree
pas'sed in the partition suit, whilst leaving the judgment and
decree in the mo'ney suit unchallenged. Expectedly, the issue
of res judicata was evoked by the respondent, which was
E sought to be doused by the appellant by contending, inter alia,
that no certificate of fitness under the unamended Article
133(1)(c) of the Constitution of India was granted with respect
to the money suit and also that parties were not common in both
the suits. This Court while disagreeing with the grounds taken
F by the appellant noted that there were two separate decrees
and appellant could always have challenged the correctness or
finality of the decision of the High Court in the money suit by
means of an application for Special Leave to Appeal and
approved the views taken by this· Court in Lonankutty and
G reiterated:
"The expression "former suit", according to Explanation I
of Section 11 of the Civil Procedure Code, makes it clear
that, if a decision is given before the institution of the
H .
proceeding which is sought to be barred by res judicata,
SRI GANGA! VINAYAGAR TEMPLE v. MEENAKSHI 857
AMMAL [VIKRAMAJIT SEN, J.]
and. that decision is allowed to become final or becomes
A
final by operation of law, a bar of res judicata would
emerge."
9. O.S.6n8 was a suit filed by the Trust claiming an amount
of Rs.11468/- as arrears of rent from the Tenants. Significantly,
8
the three Transferees (who were Defendants 7 to 9 in ·o.S.5/
78) had not been impleaded by the Trust palpably because no
relief had been claimed against them and additionally because
their presence was not relevant for the determination of the
Issues that had arisen in O.S.6n8 and O.S.7/78. The claims
pertained to a period prior to the assailed transfer of the
C
demised land from the Trust to the Transferees. It is also
noteworthy that even the Tenants did not seek their
impleadments despite the fact that they had already laid siege
to the title of the said Transferees in their plaint in O.S.5/78 and
had specifically pleaded so in their Written Statements in O.S.6/ D
78 and O.S.7/78. In this Suit, it was averred.that the Trust had
sold the suit land to the aforementioned Sarvshri P.
Lakshamanan, P. Vadivelu and P. Saibabha (Transferees
being Defendants 7 to 9 in O.S.5/78). It was, inter alia, pleaded
that the advance rent of Rs.7000/- was repayable/adjustable
E
only at the time of the handing over of the suit property by the
Tenant to the Trust. Since relief claimed in O.S.6/78 or O.S.7/
78 had no causality or connection with the Transferees their
impleadment was not necessary, in our opinion. The defence
of the Tenants was that the Trust was a public temple which
F
could not have been sold/transferred by Shri Sethurama
Chettiar and secondly that the amount claimed as arrears of
_rent was not due and payable. Various other pleas had been
raised to which we need not advert as they are not germane
for deciding the present Appeal. It will be relevant, however, to
G
mention that the Tenants had also denied that any additional
land had been taken on rent. Of the six Issues which came to
be struck in O.S. 6178 and O.S. 7/78, the following are relevant
and, therefore, reproduced:-
H
A
B
c
858
SUPREME COURT REPORTS
(2014] 12 S.C.R.
"(2) Whether the entire suit property ('A' and 'B'
schedule) in possession of the defendants are
covered by the lease deed dated 8-11-67 or
whether there was any subsequent oral agreement
in respect of '8' schedule property alone and if so,
what is its lease amount?
(3)
Whether the suit property belongs to a public temple
governed by the Act. If so, whether the suit is
maintainable for want bf sanction under Section 26
. of the Hindu Religious Institutions Act." .
10. As already noted above, O.S.6/78 was decreed only
for a sum of Rs.268/- holding, inter alia, that the Tenants cannot
adjust the advance of Rs.7000/c as against the rent claim of
Rs.11,468/- without the sanction of the landlord; that since the
D suit property was not owned by a public temple but by a private
trust, being the personal property of Shri Sethurama Chettiar, ·
sanction under Section 26 of the Hindu Religious Institutions
Act was not necessary; and that the Transferees had become
the absolute owners of the suit property by transfer/sale. Most
E
significantly, it was also held that the Tenants "are stopped from
challenging the title of the .Present landlord and they are bound
to attorn the tenancy. They have no right to question the title of
the landlord or his successors-in-title." It is also palpably
perceptible that the common Judgment entered into the arena
F of title and transferability of the suit property owing to the
Tenants' stance in all three suits, thereby rendering imperative
the filing of Appeals against the decrees in O.S.5/78 as well ,
as o.s.1na.
11. In O.S.7/78, as already outlined, the Trust sought
G recovery of Rs.2600/- as arrears of rent in respect of an alleged
oral lease for the land mentioned in Schedule 'B' situated on
the western side of the Schedule 'A' property. The defence of
the Tenants was that the entire property comprising both
Schedules 'A' and 'B' was a composite whole, and was let out
H
SRI GANGAI VINAYAGAR TEMPLE v. MEENAKSHI
859
AMMAL [VIKRAMAJIT SEN, J.]
for a period of 15 years by means of the Lease Deed -elated
A
8.11.1967. It was also pleaded that the suit had been filed by
a public trust and, thus, was not competent as framed. The Trial
Court held that the entire demised property was one, covered
by the aforementioned Registered Lease Deed, and,
accordingly, O.S. 7/78 was dismissed with costs. It
has
B
been correctly observed in the common Judgment dated
6.11.1982 by which all three Suits have been decided, that the
Issues framed in O.S.6/78 and O.S.7/78 were 'one and the
same'. In a nut-shell, the Trial Court returned the finding that the
Trust was not a Public Trust governed by the Hindu Religious c
Institutions Act, 1972 and that the sale of the demised suit land
by the Private Trust through Shri Sethurama Chettiar to
Sarvashri P. Lakshamanan, P. Vadivelu and P. Saibabha, was
not contrary to law.
12. As has already been reflected and commented upon,
D
the Tenants had filed an Appeal only in respect of O.S.6/78,
although common conclusions had been arrived at in.all three
Suits, except for some inconsequential differences. It is trite that
the obligation and duty to frame Issues is cast solely on the
Court which may, nevertheless, elicit suggestions from the
E
litigating adversaries before it. Issues settled by the Court under
Order XIV CPC constitute the crystaliization of the conflict or
the distillation of the dispute between the parties to the lis, and
are in the nature of disputed questions of fact and/or of law.
While discharging this primary function, the Court is expected
F
to peruse the pleadings of the parties in order to extract their
essence, analyse the allegations of the parties and the contents
of the documents produced by them, and, thereafter, proceed
to frame the Issues. In our opinion, so far as O.S.5/78 is
concerned, the question of the title of the property would
G
ordinarily remain irrelevant to that litigation for two reasons.
Firstly, Section 116 of the Evidence Act bars the Lessee/
Licensee from constructing if not concocting a challenge visa-vis the title of the Lessor/Licensor, if it is the latter who has
put the former in possession of the demised/licensed premises.
H
860
SUPREME COURT REPORTS
(2014] 12 S.C.R.
A
In the case in hand, the first lease was executed by Shri
Sethurama Chettiar and the renewal or the succeeding lease
was between the Trust through its President, Shri Sethurama
Chettiar, on the one hand, and the Tenants on the other. The
Tenants, therefore, stood legally impeded and foreclosed from
B assailing the title of the Trust, as has been correctly concluded
by the Trial Court, even though a specific Issue had not been
struck in this context in O.S.5178. There is no gainsaying that
where parties are aware of the rival cases the failure to formally
formulate an Issue fades into insignificance, especially when it
c is prominently present in connected matters and extensive ·
evidence has been recorded on it'without demur. Secondly, on
a proper perusal of the plaint, it ought to have been palpably
evident that the Plaintiff/Tenant in O.S.5/78 feared
dispossession from the demised premises because of what
0
they considered to be an illegal transfer; but since all the
Defendants had averred in their Written Statement that they had
no intention of doing so, the suit ought not to have been
dismissed but ought to have been decreed without more ado
solely so far as the prayer of injunction was concerned. But, in
the Trial Court the title to the leased land had become the
E fulcrum of the fight, owing to the pleadings of the Tenant in which
it had repeatedly and steadfastly challenged the title of the Trust
as well as the Transferees. The Tenant should not be permitted
to approbate and reprobate, as per its whim or convenience,
by disowning or abandoning a controversy it has sought to have
F adjudicated.
13. Chapter VIII of the Evidence Act under the he::iding
'Estoppel' is important for the present purposes. This fascicufus
comprises only three provisions, being Sections 115 to 117.
G For ease of reference we shall reproduce Section 116:-
H
"116. Estoppel of tenant; and of licensee of person in
possession.- No tenant of immovable property, or person
claiming through such tenant, shall, during the continuation
of the tenancy, be permitted to deny that the landlord of
·-
SRI GANGAI VINAYAGAR TEMPLE v. MEENAKSHI
861
AMMAL [VIKRAMAJIT SEN, J.]
such tenant had, at the beginning of the tenancy, a title to
A
such immovable property; and no person who came upon
any immovable property by the license of the person in
possession thereof, shall be permitted to deny that such
person had a title to such possession at the time when
such license was given."
B
Plainly, this provision precludes the consideration of any
challenge to the ownership of the Trust as the claim for arrears
of rent was restricted to the period prior to the sale of the suit
land by the Trust to the Transferees, namely Defendants 7 to 9
C
in O.S.5/78. The position would have been appreciably
different, were the said Defendants 7 to 9 to lay any claim
against the Tenants for arrears of rent or, for that matter, any
other relief. This is for the reason that Section 116 of the
Evidence Act would not come into play in any dispute between
D
the Tenants on the one hand and the Transferees on the other.
14. We think it prudent to extract the conclusion from the
Judgment dated 6.11.1982 common to O.S.5178, O.S.6/78 and
O.S.7178, since it is the fountainhead, the fulcrum of the legal
nodus which we have to unravel. The Trial Court has opined thus
When no trustee member or the Government is claiming
any right over the suit property, it is not known why the
Tenant should entertain a doubt as to whether real title has
passed on to the present.purchasers of the suit property.
The suit property is therefore not a public temple governed
by the Act and since the property is found to be the private
property of Sethrama Chettiar, sanction O/S.26 of the
Hindu Religious Institutions Act is therefore not necessary.
The suit property being the personal property of Sethurama
Chettiar and the same having been sold to defendants 7
to 9, tlie latter have become the absolute owners of the
suit property and the plaintiffs in O.S.5178 are stopped from
challenging the title of the present landlord and they are
E
F
G
H
A
B
c
D
862 ·
SUPREME COURT REPORTS
[2014] 12 S.C.R.
bound to attorn the tenancy. They have no right to question
the title of the landlord or his successors-in-life.
In the result, the ample evidence produced by ihe
defendant would prove that the suit property is the private
property of Sethural!la Chettiar and sale deed dated
30.6.76 in Ex.A.19 is valid and the defendants 7 to 9 are
now the real owners of the property who are entitled to take
possession of the property after expiry of the lease. In the
result, the issues are answered accordingly.
In the result, O.S.5/78 is dismissed with cost. O.S.6/78 is
decreed in part with cost as per the calculation above.
Regarding O.S.7/78, since the court has held that the entire
property is one, there cannot be any lease amount for the
rear portion and it dismissed with cost.
15. The Tenants filed Appeal 581 of 1983 in the High Court
of Judicature at Madras which came to be decided oy the
learned Single Judge on 25th April, 1997. It is indeed significant
E · that the Transferees had not been impleaded by the Tenants in·
the First Appeal, although the former were parties before the
Trial Court in the Tenants' own suit, viz. O.S. 5/78, and since
any decision favourable to the Tenants as regards the legal
propriety of the transfer of title would sev~rely impact upon if
F not annihilate the Transferees' rights, and since O.S.5/78 had
been 'dismissed', yet, regardless; no appeal thereagainst had
been preferred. Shri Sethurama Chettiar was representP.d
through his legal representatives in Appeal 581 of 1983 which
had been preferred in respect of O.S.6/78 specifically. We have
G. perused the contents of the Tenants Appeal, and as we
expected, the gravamen of the assault was the public character
and nature of the Trust and the legal imperfection of its transfer.
This also fortifies the analysis that the dispute raised by the
Tenants in their suit as well as their defence to the Trust's suits
H was that mentioned in the preceding sentenee. This is indeed
· SRI GANGA! VINAYAGAR TEMPLE v. MEENAKSHI
863
AMMAL [VIKRAMAJIT SEN, J.]
remarkable since the Tenant was fully alive to the detrimental A
nature of the decision in 0.S. 5178 and that it critically crippled
its rights and interests, as is evident from the fact that the Tenant
filed a Review bearing CRA No. 1/1993, which by a detailed
Judgment dated 19.3.1999 was dismissed. So far as the
contentions of the parties are concerned, the First Appellate B
Court had noted, inter alia, that the Tenants had denied any
liability towards the arrears of rent; that the Ten~nt had argued
that the Trust's Suits were not maintainable in law for want of
necessary sanction under Section 25 of the Hindu Religious
Institutions Act, 1972; that the Tenant did not adr11it the validity c.
of the Sale Deed dated 1.7 .1976 on the grounds that, having
regard to Section 25 of the Hindu Religious Institutions Act,
1972, it was a nullity. The First Appellate Court conducted an
elaborate and detailed discussions as to the nature of the
Temple/Trust property in order to ascertain whether it partook 0
of a private or a public trust. We have already highlighted that
O.S.5/78 filed by the Tenants was "dismissed", nevertheless,
this verdict has not been appealed against. After recording the
detailed arguments on both sides, the First Appellate C9urt
encapsulated the following points for consideration:-
E·
(i)
Whether the present appeal by the plaintiff
canvassing the findings of the trial court on issue
numbers 2, 3 and 4 by the learned trial Judge is
barred by the doctrine of res-judicata as contended
by t~e respondents?
·
F
(ii)
Whether findings given by the learned trial Judge
on the above issues are correct, valid in law and
as such it is sustainable?
(iii)
Whether the plaintiff is entitled to question the G
validity of the sale"deed in favour of defendants 7
to 9 by the second defendant?
(iv)
What relief, if any, the parties are entitled to?
H
864
SUPREME COURT REPORTS
(2014] 12 S.C.R.
A
Obviously, O.S. 5/78 was as focal as the other, otherwise
(iii) above would not have arisen. It is evident that all concerned
erroneously assumed that 0.S.5/78 had also been carried in
Appeal.
8
16. The First Appellate Court, in reversal, held that the
Plaintiff in O.S.6/78 was a Public Trust and, accordingly, fell
within the purview and sweep of the Hindu Religious Institutions
Act, 1972. So far as the failure of the Tenants to appeal against
the dismissal of O.S.5n8, the First Appellate Court held, in our
C
opinion questionably, that that was not necessary since there
was no adverse findings against the Tenants. While we can
appreciate that owing to the stands of the defendants in their
Written Statements filed in O.S.5/78 there was, in actuality, no
challenge to the Plaint, but nevertheless, the suit of the Tenants
had been 'dismissed' and therefore, at the very least, it would
D
have been proper and prudent to file an appeal and at least in
abundant caution obtain a clarification thereon. The 'dismissal'
of suit O.S.5/78 cannot but be indicative of the opinion that all
the asse'rtions of fact and law were in the opinion of the Trial
Court legally untenable, perforce including that the Trust could
E
not have transferred the suit property in the manner it did. For
this very reason the Tenant should also have appealed against
the verdict in O.S.7n8 in respect of the findings of the Trial Court
common to O.S.6/78; since the Trust had not assailed the
rejection of its plea that a separate tenancy governed the claim
F
in O.S.7n8 that part of the verdict had attained finality. The First
Appellate Court has opined, in the event erroneously, that the
doctrine of res judicata was not attracted to the facts of the
instant case.