Kerala High Court
Sathi vs Nanu Gopalan on 26 September, 2001
JUDGMENT R. Bhaskaran, J.
1. Plaintiff in a suit for declaration and consequential injunction is the appellant in the second appeal. The question that arises for consideration in this second appeal is whether the suit is barred by the principle of res judicata inasmuch as the plaintiff had earlier filed O.S. No. 799 of 1976 for injunction against the defendants and others and that suit was dismissed.
2. The brief facts leading to the above question are as follows; The plaintiff purchased 1.07 Acres of land as per registered documents dated 4.6.1975. According to the plaintiff, item 3 in the plaint schedule is part of the property purchased by him. There is a Bhajana Madom situated in that property. He purchased the entire property in 1975. It is the further contention of the plaintiff that it was his predecessor-in- interest who constructed the Bhajana Madom and was conducting poojas in it. After the purchase, the plaintiff filed O.S. No. 799 of 1976 before the Munisiff, Cherthala, against defendant 1 to 10 seeking an injunction restraining them from demolishing or re-constructing the Bhajana Madom. The Munsiff Court went into the question whether the 1 cent in which the Bhajana Madom was situated was sold to the plaintiff as per the document in 1975 and whether the tharavad to which the property originally belonged had given it to the public for construction of a Bhajana Madom and there was a permanent dedication of it to the public. The trial court raised the following among other issues in that suit.
Issue No. 2. Has the plaintiff any subsisting right over plaint item No. 1?
Issue No. 4. Has it become the common property of the defendants and Kottayil Hindu Public?
The trial court found that the assignor of the plaintiff had 1.08 Acres in his possession and what was assigned to the plaintiff was only 1.07 Acres and nothing was mentioned about the Bhajana Madom in the assignment deed. Therefore, it was found that the plaintiff did not get any right by virtue of the assignment deed and he is not entitled for injunction. It was further found that the property was given to the public for construction of the Bhajana Madom and it has become irrevocable licence granted by the original owner. The following are the findings in the earlier suit.
"So if the property is having a larger extent and unless the plaintiff shows that plaint item No. 1 site and item No.2 Bhajana Madom are comprised in the above one acre and 7 cents, the plaintiff cannot successfully contend that he got any title or possession of item No .1 or 2."
It is also found:
"So this would lead to an inference that if at all Velayudhan had any colour of right over the site of the Bhajana Madom under Exts. B1 and B2, he did not transfer that right in item NO. 1 in favour of the plaintiff under Ext. A1."
In paragraph 19 it was clearly found that:
"Thus on putting the evidence of PW1 to careful scrutiny in the context of documentary evidence adduced by either side, I have no hesitation to find that the plaintiff has failed to prove that he has any title to or possession of plaint item No. 1 or plaint item No. 2."
It was further found on issue No. 4 as follows:
"In the circumstances I am inclined to find that the Hindus of the locality were having possession of item No. 2 Bhajana Madom and that they took steps before suit to renovate it by constructing a new building on demolition of the old one."
Further in paragraph 29 it is stated:
"29. Thus on putting the evidence of PWs. 1 to 4 and DWs. 1 to 3 careful scrutiny I have no hesitation to find that the plaintiff has failed to prove that he has any titled to or possession of item No.1 or item No. 2 Bhajana Madom. There are reasons to believe from the documents produced and also the oral evidence of witness DWs. 1 to 3 and PWs. 1 to 4 that the Bhajana Madom was constructed by the local Hindu of Kottayilbhagom and that the site was given to them by one member of Changarathu Taravad who originally had title to the property for the purpose of constructing Bhajana Madom to enable the people of locality to have worship. Under the licence granted about 50 years ago, a building of a permanent character was constructed by the local Hindus and poojas and Bhajanas have been continuously performed in item No. 2 building for the last 50 years ago, a building of a permanent character was constructed by the local Hindus and poojas and Bhajanas have been constructed by the Hindus of Kottayilbhagom in item No. 1, the licence granted by Changarathu tarwad to the public has become irrevocable. The Panchayat assessment extracts in respect of item No. 2 would also show that item No. 2 has been treated as belonging to the people of the locality by the Panchayat also".
It was also found in para 32:
"The licence or grant has been in force for about 50 years and the local Hindus have been using the Bhajana Madom for prayers and worship. So it is a licence or grant which comes within the ambit of Section 60(b) of the Indian Easements Act. Therefore, I find that the licence is irrevocable."
3. The plaintiff had filed an appeal against the judgment in O.S. No. 799 of 1976 (Ext. A14) and the appeal was also dismissed as per Ext. B11 judgment dated 18.3.1981. Therefore, the plaintiff fled the present suit for declaration of title and recovery of item No. 3, the property where item No. 1 Bhajana Madom is situated, after demolishing item No. 2 Bhajana Madom and injunction on restraining the defendants from trespassing into item No.1. The trial court granted a decree as prayed for finding that the earlier suit was only for injunction and the decree did not bar the plaintiff's right to claim title upon plaint schedule items 2 and 3 properties. The trial court went into the question of title and on finding that Commissioner's report shows that item No. 2 Bhajana Madom forms part of item No. 1 belonging to the plaintiff granted a decree declaring the plaintiff's title and directing defendants to demolish the Bhajana Madom reconstructed by them failing which the plaintiff is entitled to get it removed.
4. In appeal, the lower appellate court has reversed the decree and judgment of the trial court finding that the suit is barred by res judicata and that the plaintiff is not entitled for the reliefs in the suit.
5. In this second appeal, the learned counsel appearing for the appellants strenuously contended that in the earlier suit, it was found that the suit being one for injunction, the question to be considered was one of possession only and that court had in the judgment clearly stated that no finding of title made in the judgment to decide the question will operate as res judicata and no finding int he judgment will prevent the plaintiff in the suit to file a title suit if he so chooses. In the light of the above observations made by the trial court which was not interfered with by the lower appellate court in Ext. B11 judgment, the learned counsel for the plaintiff submitted that there is no bar of res judicata as the curt which granted the decree itself had stated that the question of title is left open. At the first blush, it is an attractive argument and therefore requires close scrutiny. As already mentioned, the two issues framed in the earlier suit were with respect to the right of the plaintiff over 1 cent of land and the right of the defendants representing the public of the locality for the use fo Bhajana Madom. On the first question it was found that the assignment deed given to the plaintiff did not take in the 1 cent which is in dispute in both the suits. On the second question, it was found that an irrevocable licence has been granted to the public and admittedly they have constructed a new Bhajana Madom. They cannot be directed to remove it from the plaint schedule property and they have got a right of workshop in it. Since it was a finding on analysing documents and considering the rival questions between the parties, it cannot be said that it was not a question directly and substantially in issue.
6. It is well settled that a decree in a mere suit for injunction in which the question of possession alone is relevant will not ordinarily operate as res judicata in a subsequent suit on title. It is also settled that if while considering the question of possession the question of title was incidentally or collaterally considered, then also the bar of res judicata will not apply. It is for this reason that the learned counsel appearing for the appellants submitted that the question of title was only collaterally or incidentally considered in the earlier suit and therefore, the question is still open to be considered in a regular suit on title. In support of the above proposition, the letter counsel for the appellants relied on the decision of the Supreme Court in Grampanchayat of Village Naulaka v. Ujagar Singh (2000 (7) SCC 543) in which the Supreme Court held as follows:
"10. We may also add one other important reason which frequently arises under Section 11 CPC. The earlier suit by the respondent against the Panchayat was only a suit for injunction and not one on title. No question of title was gone into or decided. The said decision cannot, therefore, be binding on the question of title. See in this connection Sajiadanshin Sayed v. musa Dada Bhai ummr where this Court on a detailed consideration of law in India and elsewhere held, that even if, in an earlier suit for injunction, there is an incidental finding on title, the same will not be binding in a later suit or proceeding where title is directly in question unless it is established that it was "necessary" in thee earlier suit to decide the question of title for granting or refusing injunction and that the relief for injunction was founded or bases on the finding on title. Even the mere framing of an issue on title may not be sufficient as pointed out in that case."
The Supreme Court in the above judgment had referred to its earlier decision in Sajiadanashin Sayed v. Musa Dadabhai Ummer (2000) 3 SCC 35). In that decision, the Supreme Court was considering what was meant by matters "directly and substantially" in issue and matters "collaterally and incidentally" in issue. Paragraphs 14 to 16 in that judgment read as follows:
"14. A collateral or incidental issue is one that is ancillary to a direct and substantive issue; the former is an auxiliary issue and the later the principle issue. The expression "collaterally or incidentally" in issue implies that there is another matter which is "directly and substantially"
in issue (Mulla's Civil Procedure Code, 15th Edn., P. 104).
Difficulty in distinguishing whether a matter was directly in issue or collaterally or incidentally in issue and tests laid down in various courts.
15. Difficulty in this area of law has been felt in various jurisdictions and therefore, some tests have been evolved. Halsbury says (Vol. 16, para 1538) (4th Edn.) that while the general principle is clear, "difficulty arises in the application of the rule, in determining in each case what was the point decided and what was the matter incidentally cognizable, and the opinion of judges seems to have undergone some fluctuations".
16. Spencer Bower and Turner on the Doctrine of Res Judicata (2nd End., 169, p.181) refer to the English and Australian experience and quote Dixon, J. of the Australian High Court in Blair v. Curran CLR at P. 553 to say:
"The difficulty in the actual application of these conceptions is to distinguish the matters fundamental or cardinal to the prior decision on judgment, or necessarily involved in it as its legal justification or foundation, from matters which, even though actually raised and decided as being in the circumstances of the case the determining considerations, yet are not in point of law the essential foundation of a ground work of the judgment."
The author says that in order to understand this essential distinction, one has always to inquire with unrelenting severity - is the determination upon which it is sought to find an estoppel to fundamental to be substantive decision that the latter cannot stand without the former. Nothing less than this will do. It is suggested by Dixon, J. that even where this inquiry is answered satisfactorily, there is still another test to pass: viz, whether the determination is the "immediately foundation" of the decision as opposed to merely "a proposition collateral or subsidiary only, ie., not more than part of the reasoning supporting the conclusion". It is well settled, say the above authors, "that a mere step in reasoning is insufficient. What is required is no loss than the determination of law, or fact or both, fundamental to the substantive decision".
In paragraph 18, it is further stated that "one test is that the issue was "necessary" to be decided for adjudicating on the principal issue and was decide, it would have to be treated as "directly and substantially" in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case (Mulla's Commentary on CPC) and the Supreme Court has approved the same in the above said decision.
7. If the facts of the preset case are analysed, it can be seen that the earlier decision in the injunction suit was decided solely on the basis of the difference in extent in the title deed of the plaintiff and the title deed of the plaintiff's assignor. It is also to be noted that in the earlier suit, an issue was raised as issue No. 4 as "Has it become the common property of the defendants and Kottayil Hindu Public? and there was a finding while answering that issue that there is an irrevocable licence in favour of the local Hindus for construction of Bhajana Madom in 1 cent of land by the original owner of the property. Now the direction of the trial court in the present case is to remove the newly constructed Bhajana Madom and handover the vacant plot to the plaintiff. It is direct conflict with the earlier finding between the parties by a competent court. Therefore, the principle of res judicata is applicable in the case as the question in issue in this case was directly an substantially in issue in the former suit.
8. Learned counsel for the respondents also relied on the decision of this Court in Yesoda V. Kunhambu (1991 (2) KLT 270) where this Court had stated that the observation in the earlier judgment while the second appeal was dismissed at the time of admission, that decision appealed against will not be res judicata in subsequent suit of title will have no effect. That decision was rendered on the basis of the Full Bench decision of this Court in Thambi v. Mathew (1987 (2) KLT 848) where this Court had held that when the appeal was dismissed in limine without notice to the respondent the observations in the judgment will not be binding on the respondent and the respondent is entitled to ignore the decree of which he had no notice. In Yasoda's case, there was a finding in the earlier suit that the plaintiff has no title over the plaint schedule property and for that reason the plaintiff is not entitled to the inunction prayed for. This Court allowed the second appeal and held that the finding in the earlier suit will operate as res judicata in spite of the observation by this Court while dismissing the earlier second appeal that it will be no bar for a fresh suit on title.
9. If the principle underlying the rule of res judicata is that one should not be vexed twice for the same cause and there should be finality of litigation, this case is the best example for application of such a rule.
10. In view of the above discussion, I do not think that there is any merit in the second appeal and the same is dismissed.