Here the matter relating to the status of the defendants as tenants was directly and substantially in issue between the parties in both the suits. Hence the plea of res judicata applies.
(Para 24)
Krishna Behari Roy v. Bunwari Lall Roy, ILR 1 Cal 144 : 2 IA 283, relied on.
Sheosagar Singh v. Sitaram Singh, 24 IA 50 : ILR 24 Cal 616 and Ashgar Ali Khan v. Ganesh Dass, AIR 1917 PC 201 : 44 IA 213, considered.
Girdhar Manordas v. Dayabhai Kalabhai, ILR (1884) 8 Bom 174; Dwarkanath Roy v. Ram Chand Aich, ILR 26 Cal 428; Dalip Narain Singh v. Deokinandan Prasad Singh, AIR 1939 Pat 519 and Ramagya Prasad Gupta v. Murli Prasad, (1974) 2 SCC 266, distinguished.
Per Untwalia, J. (dissenting)
The question of res judicata has got to be decided with reference to the final decision in the earlier litigation because the words in para 1 of Section 11 of the Code are that the matter directly and substantially in issue in the second suit has been directly and substantially in issue in a former suit and “has been heard and finally decided”.
(Para 58)
Sheosagar Singh v. Sitaram Singh, 24 I-A 50 : ILR 24 Cal 616 and Ashgar Ali Khan v. Ganesh Dass, AIR 1917 PC 201 : 44 IA 213, relied on.
Venkataratnama v. M. Krishnama, AIR 1921 Mad 21, referred to.
The trial of the three issues, namely the issue of Respondent 1 being the adopted son of Param Lal, his title to the house, and the appellants not acquiring any title by adverse possession is not barred by res judicata. The first two issues were not decided in the earlier suit even by the trial court. The third issue, although decided by the trial court, was thought unnecessary to be decided within the frame of the earlier suit by the lower appellate court and the High Court. The final decision of the High Court clearly confined the decision in the earlier suit to the issue of establishment of relationship of landlord and tenant in regard to all the appellants. The High Court also said that the question of tenancy could be gone into in the second suit to repel the appellants' claim of having acquired title to the house by adverse possession. Failure of Respondent 1 to establish the relationship of landlord and tenant between him and the appellants did not, ipso facto, lead to the conclusion that they had any hostile title to the house.
(Para 60)
On facts, the lower appellate court did not make any distinction between the case of Defendants 2 and 3 and Defendants 1 and 4 on the question of their acquiring adverse possession. The final judgment of the High Court in the earlier suit rested only on the ground of non-establishment of relationship of landlord and tenant between the parties. The question of adverse possession was mutilated and obliterated finally by the final decision of the High Court in the earlier litigation.
(Para 61)
Civil Procedure Code, 1908 — Section 11 — Plea of res judicata — In consideration of, held, correctness of the finding is not in issue — The findings have to be taken on their face value
(Para 7)
Civil Procedure Code, 1908 — Sections 11 and 100-101 — Res judicata, plea of — Whether can be raised before the High Court when second appeals arising out of two suits are treated as connected appeals
Held :
Per Mathew and Goswami, JJ. (Untwalia, J. dissenting)
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.
(Paras 27 and 61)
Civil Procedure Code, 1908 — Order 32 — Minor's interest vis-a-vis representative's interest in the same action — Plea of adverse possession upheld only in case of the minors — Limitation Act, 1908, Articles 142 and 144
Held :
The minor's interest even lawfully represented by a party is separate and distinguishable from that party's individual interest, if any, in a particular action.
(Para 36)
Appeal partly allowedM/2770.C