1. The plaintiff in O.S. No. 70 of 1977 on the file of the District Munsif, Pattukkottai, is the appellant in this second appeal. The respondent herein is the first defendant in the suit. There were two other defendants and they have not been made parties to this second appeal, since obviously their presence is not necessary for the purpose of this second appeal. The plaintiff laid the suit for declaration of title and for recovery of vacant possession. The suit has come to be filed under the following circumstances. The suit property is about one kuzhi of land in new survey No. 158/9/19, part of old survey No. 158/1 in Avadainallavijayapuram village, Orathandau Taluk, Thanjavur District. The suit property and five kuzhis of land south of the suit property (total 2 cents) were purchased by the plaintiff from one Chinnayyan under a registered sale deed dated 23-7-76, marked in the suit as Ex.A-1 and the plaintiff has put up a shed thereon and it is in his enjoyment. Before the sale, the first defendant had taken a shed in the suit property from Chinnayyan on lease and on purchase by the plaintiff, the first defendant and Chinnayyan agreed to dismantle and take away the shed and vacate the land within three months from the date of the sale. One Pichamuthu, claiming that he had purchased the extent of the land covered by Ex.A-1 from the very same Chinnayyan, obstructed the enjoyment of the plaintiff. The plaintiff was obliged to file the suit, O.S. No. 173 of 1976 on the file of the District Munsif, Pattukkottai, against Pichamuthu, the first defendant herein and Chinnayyan, for declaration and for injunction. Pichamuthu and Chinnayyan remained ex parte in the suit and the first defendant in the present suit, who was the second defendant in the earlier suit, alone contested the suit. I will have occasion to refer to the scope of the suit and the nature of the contest by the first defendant herein, the second defendant in that suit, while discussing the question of res judicata agitated in this case. Suffice it to point out at this juncture the plaintiff succeeded in obtaining a decree on 26-3-77 for declaration of his title, and for an injunction restraining the first defendant therein, Pichamuthu from in any way interfering with his possession and enjoyment of the property and the first defendant herein, who was the second defendant in that suit, was directed to pay the plaintiff the costs of the suit. Stating that the first defendant had declined to vacate the suit property and had denied the title of the plaintiff, the plaintiff filed the present suit for the above reliefs. Defendants 2 and 3 were added as parties on the ground that they claimed some rights . in the suit property. The first defendant contested the suit, denying the title claimed by the plaintiff and questioning the validity of the sale deed under which the plaintiff claims title and the right of Chinnayyan to alienate the suit property to the plaintiff. The first defendant also denied that he was a tenant under Chinnayyan and he would claim that he is running a tea-shop, putting up a superstructure over an extent of 3/4 cent and neither the plaintiff nor his predecessor-in-interest has any right over the suit land. He would also state, that the suit is bad for want of notice to quit. We are not concerned with the defence of the other two defendants in the present second appeal since they went out of the picture by the dismissal of the suit against them by the first court itself and there had been no further agitation against them. With regard to the contest between the plaintiff and the first defendant, three questions arose for consideration. The first question is as to whether the decision in O.S. No. 173 of 1976 would operate as res judicata for the claim of the first defendant; the second is as to whether the plaintiff has established independent title to the suit property; and the third is as to whether the suit of the plaintiff should fail for want of notice to quit. On the first question, the first court held that the plea of res judicata urged by the plaintiff must fail; on the second question, the first court held that the plaintiff has title to the suit property; and on the third question, the first court held that the suit cannot be thrown out for want of any notice to quit. As a result, the suit was decreed against the first defendant with costs. The first defendant appealed and the appeal, A.S. No. 115 of 1978 was heard and disposed of by the Subordinate Judge, Thanjavur and the appellate court concurred with the view of the first court on the question of res judicata. However, it took a different view both on the question of title as well as on the question of want of notice to quit. As a result, the appeal of the first defendant was allowed; the judgment and decree of the first court were set aside and the plaintiff's suit was dismissed with costs throughout. This second appeal is directed against the judgment and decree of the lower appellant court.
2. At the time of admission of this second appeal, the following substantial questions of law were formulated for consideration:
(a) Whether the judgment in O.S. No. 173 of 1976 operates as res judicata?
(b) Whether any valid notice to quit is necessary when the first defendant denies the title of the landlord?
(c) Whether the reasoning of the lower appellate Court for holding that O.S. No. 173 of 1976 is not res judicata correct?
(d) Whether the lower appellate Court is correct in going into the question that the plaintiff should prove title even after the judgment in O.S. No. 173 of 1976?
3. Mr. D. Peter Francis, learned Counsel for the plaintiff, would first submit that the plea of the first defendant on the question of title will come within the mischief of res judicata and learned Counsel would submit that the two Courts below have not appreciated and applied correctly the principles of res judicata to the facts of the present case. In answer, Mr. G. Subramanian, learned Counsel for the first defendant, would submit that the first defendant herein, who was the second defendant, against whom no relief was claimed and hence, the decision in O.S. No. 173. of 1976 cannot be put against the pleas of the first defendant herein on the question of title, invoking the principles of res judicata.
4. Before, I advert to the principles deducible from the very provisions of Section 11, of the Code of Civil Procedure, hereinafter referred to as the Code, and the expatiation of the same by judicial precedents, I would like to dwell upon the facts which have emerged with regard to this question, Ex.B-2 is the copy of the plaint in O.S. No. 173 of 1976. As already adverted to, the first defendant herein was the second defendant in the earlier suit. The previous owner Chinnayyan was the third defendant a third party, one Pichamuthu was the first defendant in the earlier suit. The material averments in the plaint in the earlier suit ran as follows: The plaintiff purchased the property by a deed of sale dated 23-7-1976 from the third defendant and he was in possession of the property ever since the said sale. Before, the sale the second defendant was enjoying a shed on the northern side of the property on lease and defendants 2 and 3 agreed to dismantle the shed and vacate the property within three months from the date of sale. The first defendant, claiming that he has purchased the property from the third defendant, obstructed the enjoyment of the property by the plaintiff. The alleged sale was not true and was not valid in law and would not bind the plaintiff. The plaintiff prayed for a declaration of his title and he wanted an injunction against the first defendant. It was averred that since the second defendant would not join with the plaintiff in filing the suit, he was being impleaded as the second defendant. A certified copy of the written statement of the second defendant in O.S. No. 173 of 1976, has been marked as Ex.B-11, in the present suit. The material averments therein ran as follows: The second defendant was running a tea shop in the village for the past seven years. He did not admit that either the plaintiff or his predecessor-in-title had any title or possession over the property in which the tea shop was being run. The second defendant did not admit that the suit property covered the land belonging to him and in his possession. He would not admit that the sale deed dated 23-7-1976 covered the land belonging to him and in his possession. He also denied that he ever agreed to vacate and deliver vacant possession to the plaintiff. He would assert that he was not running the tea shop in a shed, but the tea shop had walls and it was a pucca one and the shop belonged to him. He would also deny the enjoyment by the plaintiff of the property. In substance, the second defendant would claim title and enjoyment for himself and would not admit the title claimed by the plaintiff. Ex.A-3 is a certified copy of the judgment in O.S. No. 173 of 1976 dated 26-3-1977. Defendants 1 and 3 remained ex parte. After tracing the pleadings as put forth by the plaintiff and the second defendant, the District Munsif, Pattukkottai, framed the following issues in O.S. No. 173 of 1976:
1. Whether the suit against 2nd defendant is maintainable.
2. Whether the plaintiff is entitled to the reliefs of declaration and injunction prayed for?
3. To what relief is the plaintiff entitled?
The Court held that the second defendant was a necessary party to the suit as he was admittedly residing thereon inasmuch as the suit had been filed for declaration and permanent injunction. There is no gainsaying that the relief of injunction asked for by the plaintiff was only against the first defendant. But the adjudication over the question of title by the Court cannot be stated to be only with reference to the first defendant and equally so, it cannot be said that the question of title was not at all put in issue between the plaintiff and the second defendant. A certified copy of the decree in O.S. No. 173 of 1976 has been marked as Ex.A-2 and, as stated above, the reliefs granted are three-fold. The first relief is with reference to the declaration of title in favour of the plaintiff. Definitely, this was directed against the second defendant also. The second relief or permanent injunction, obviously, was directed against the first defendant alone. The third relief related to costs and it was awarded against the second defendant alone. The above are the facts disclosed in the case with reference to the question of res judicata.
5. The question of res judicata has always proved a vexed one and judicial precedents have expressed divergent views of course, depending upon the facts of the cases dealt with by them. Primarily, we shall go only by the express language of Section 11 of the Code, the substantive part of which runs as follows:
No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
6. The suit or issue in which the matter directly, and substantially in issue ought to have been directly and substantially in issue in a former suit. The former suit ought to have been between the same parties or between parties under whom they or any of them claim, litigating under the same title. The former suit ought to have been before a Court competent to try the subsequent suit or the suit in which such issue has been subsequently raised. The matter ought to have been heard and finally decided by such Court. These are the primary ingredients to be satisfied for invoking the principle of res judicata. The Explanations to the section further expatiates the principle. For a finding in an earlier suit to operate as res judicata it should have been necessary for the disposal of the earlier suit. It is only in that sense, the issue in the later suit ought to have been directly and substantially in issue in the former suit. Further there ought to have been a trial of the issue and a final decision thereon. As pointed out by the Supreme Court in Vaithilingam Pillai Charities v. Vijayavalli (1966)2 M.L.J. 48, a decision can operate as res judicata, if it was necessary for the purpose of the case in which it had been given. In that case, the Supreme Court had to decide as to whether, a sentence in a judgment with reference to devolution of rights on the death of a party amounted to a decision operating as res judicata and the Supreme Court held that it did not because, the point was not at all in issue, it never arose for a decision; and it was not necessary for the purpose of the case. As to when a matter could be stated to have been directly and substantially in issue in a suit, Explanation III could form a guide when it states:
The matter above referred to must in the former suit, have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
The above principle has been reiterated by the Supreme Court in Lonankutty' v. Thomman . In Govindan v. De'Silva , a Bench of this Court, while pointing out that although the law knows of a pro forma defendant, the idea of pro forma plaintiff is repugnant to it, observed that the question of res judicata is one of substance.
7. The submission put forth by Mr. G. Subramanian, learned Counsel for the first defendant, is that his client was only a pro forma defendant in the earlier suit and it could not be stated that the question of title was directly and substantially in issue between the plaintiff and his client in the earlier suit and hence, his client could escape the scythe of res judicata in the instant case.
8. Stone, C.J., in Official Assignee v. Madholal Sindh A.I.R. 1947 Bom. 217, declined to bestow any approval on a pro forma defendant or of recognising such an entity as in any way different from any other defendant. There is no need to take that extreme view because the Code as such has drawn a distinction between a necessary party and a proper party. But, the real test is not the nomenclature or character that gets annexed to the party to the litigation, but it must be to find out as to whether any issue between the parties, be though the defendant was called apro forma defendant, was directly and substantially in issue in the former suit and was heard and finally decided by the Court. If a defendant is a necessary party or if any relief is claimed against him, the mere fact that he chose not to file any written statement and contest the suit will not make him escape the decision in that suit as binding on him in a subsequent suit. If, on the other hand, the defendant is not a necessary party but he was added on only as a pro forma defendant, whose presence was coveted only for effectually and completely adjudicating all the questions between the other parties and no relief is claimed against him, it is open to such defendant not to take part in the litigation and if he adopts that course, no issue decided in that suit would operate as res judicata against him in any subsequent suit. But if such defendant, who is not a necessary party to the suit and against whom no relief is claimed, put in his written statement, joins the litigation and the issue in that suit, he takes the risk, in that such an issue decided in that case will be binding on him. The discussion by Chagla, J., in Official Assignee v. Madholal Sindhu A.I.R. 1947 Bom. 217, countenances the above propositions. It was pointed out that when we have a defendant against whom no relief is sought and who is not a necessary party and who does not take part in the litigation, he cannot be bound by an issue decided in such a suit.
9. There is another angle from which the matter could be looked at and that is, if any such person had a right to be heard or to control the proceedings, he will be bound by the doctrine of res judicata even though he was joined merely as a formal party and even though no relief was sought or obtained against him. This has been recognised by the majority view of the Full Bench in Sitaram v. Prithvi Singh . The mere fact that the defendant was made a party as such because he would not join the plaintiff in the litigation, would not affect the plea of res judicata if the other ingredients do stand satisfied.
10. There is yet another angle from which the matter could be viewed and that is, will there not be a necessity for the party to get rid of the decision in the earlier suit, if in fact, there had been an adjudication of the contentions raised, or to put it in other words, had not a right to appeal accrued to the party concerned? This angle has been taken note of by a Bench of this Court in Kumarappa v. Raghunatha (1932)62 M.L.J. 141 : 35 L.W. 35 : (1932) LL.R. 55 Mad. 483 : A.I.R. 1932 Mad. 207.
11. Coming to the present case, the discussion of the factual materials which has preceded, in my view, amply justify the position that the first defendant's contentions with regard to title to the suit property will have to be negatived on the principle of res judicata It is true that in the plaint in O.S. No. 173 of 1976, there is an averment that the first defendant herein, the second defendant therein, was being impleaded because he would not join the plaintiff in filing the suit. As pointed out above, this will not come in the way of applying the principle of res judicata if otherwise there is a warrant for it. There was a prayer for declaration of title. The prayer with regard to injunction was directed against one third party, Pichamuthu, who was arrayed as the first defendant in the earlier suit. The first defendant herein, the second defendant, in the earlier suit, did file a written statement asserting title in himself and denying the title of the plaintiff. There was an issue in the earlier suit as to the title of the plaintiff. The Court held that the first defendant herein, the second defendant in the earlier suit, is a necessary party inasmuch as the suit was filed for declaration and the plaintiff was granted the relief of declaration also. Furthermore, the first defendant herein, the second defendant in the earlier suit, alone was mulcted with costs. The question of title was decided in that suit and to that question the first defendant herein, the second defendant in the earlier suit, joined in issue and the decision on the question of title was necessary for the disposal of the earlier suit. Can it be stated that there was no adjudication of title claimed by the plaintiff and contested by the first defendant herein, the second defendant in the earlier suit? In case the plaintiff failed on the question of title, would he have allowed the decision to rest there? But, in the instant case, the first defendant herein, the second defendant in the earlier suit, allowed the decision on the question of title against him to become final and conclusive The legal principles being what they are and the facts of the case staring, in one's face, I am of the view that the first defendant herein, the second defendant in the earlier suit, could not escape the principle of res judicata coming in his way with reference to the question of title. There is no dispute that the other ingredients of Section 11 of the Code do stand satisfied. The parties are same. The Court is same. The property involved is same, with this difference that in the earlier suit the entirety of the property was the subject-matter in issue and in the present suit a specified portion thereof is in issue. In my view, the Courts below have not appreciated and applied the correct principles regarding res judicata, and . hence, I have to sustain the submission made by Mr. D. Peter Francis, learned Counsel for the plaintiff in this regard and have to uphold the title of the plaintiff on this issue.
12. Mr. D. Peter Francis, learned Counsel for the plaintiff, would submit that even otherwise, the plaintiff has established independently his title to the suit property and the lower appellate Court has omitted to construe and misconstrued material evidence on the question of title. Learned Counsel would point out that the lower appellate Court adversely comments against the plaintiff with regard to the non-production of the original of Ex.A-4, the Kudiyiruppu patta issued in favour of the vendor of the plaintiff, and submits that when this document was produced, there was no objection on the side of the first defendant on the ground that the original was not forthcoming. Learned Counsel would also submit that the lower appellate Court adversely comments with regard to the non-examination of the vendor of the plaintiff and this, according to the learned Counsel, is not proper because, the plaintiff did offer an explanation for such non-examination pointing out that the vendor had turned inimical towards the plaintiff. Learned Counsel also takes exception to the construction of the recitals in Ex.A-1 by the lower appellate Court, in comparison with Ex.B-4 to spell out a theory that the identity of the suit property has not been established and the learned Counsel points out that the identity of the suit property was not at all raked up by the first defendant in the course of the trial of the suit. Learned Counsel has also got a grievance to be expressed with regard to the lower appellate Court accepting the payment of professional tax and payment of licence fee by the first defendant as substantiating the title claimed by him. This grievance may be well-founded but since I have upheld the principle of res judicata as a result of which the decision on title given in the earlier suit will govern the controversy in the present suit, there is no necessity to go into this question independently.
13. A technical plea has been raised by the first defendant by stating that the suit must fail for want of proper notice to quit. In the written statement filed, except for a stray sentence that the suit must fail for want of proper notice to quit, there is no amplification of the ground on which the notice to quit is required. However, Mr. G. Subramanian, learned Counsel for the first defendant would submit that the plaintiff himself characterised the first defendant as a tenant and hence, even assuming that the first defendant set up title in himself, there ought to have been a determination of the lease under Section 111(g), Clause (2) of the Transfer of Property Act. The facts disclosed do not justify the projection of such a theory at all. The suit is not based on tenancy. The suit has been filed for declaration of title and for recovery of vacant possession. The plaintiff never claimed that the first defendant was his tenant at any point of time. The first defendant also never admitted that he was a tenant under the plaintiff at any point of time. It is true that in the plaint there is a reference that the first defendant was a tenant under the vendor of the plaintiff. But, it has been categorically averred that the first defendant and the vendor of the plaintiff agreed to dismantle the shed and vacate the land within three months from the date of the sale in favour, of the plaintiff, thereby clearly suggesting that any alleged erstwhile relationship based on tenancy between the vendor of the plaintiff and the first defendant agreed to be put an end to and the first defendant agreed to vacate the land, as stated above. The plaintiff could not be stated to have alleged or admitted that the first defendant continued in possession as his tenant after the plaintiff's purchase. The first defendant never came anywhere near this case of tenancy under the vendor of the plaintiff. To attract Section 111(g) of the Transfer of Property Act, there ought to have been an indisputable relationship or lessor and lessee at some point of time or other and subsequently, the lessee ought to have renounced his character as such, setting up title in a third person or by claiming title in himself. Where, from the very inception there was no admission on either side of the existence of the relationship of lessor and lessee and the parties were always at grips and loggerheads, each one claiming independent title in himself, as against the other, there is no scope for coming anywhere near Section 111(g) of the Transfer of Property Act. Such are the facts of the present case. The first defendant never admitted that he was put in possession of the suit property by the plaintiff's vendor as a lessee and there was an attornment of tenancy by him in favour of the plaintiff on the latter's purchase. Hence, the plea with regard to lack of notice to quit is a misconception on the facts of the present case.
14. For all the reasons, I am obliged to interfere in second appeal. Accordingly, the second appeal is allowed; the judgment and decree of the lower appellate Court are set aside and in their place, the judgment and decree of the first court are restored, except with regard to costs awarded; and the suit of the plaintiff with regard to the main reliefs will stand decreed as prayed for. However, in the peculiar circumstances of the case, I direct the parties to bear their respective costs throughout.
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