Karnataka High Court
Shankaralingappa vs Nanje Gowda And Ors. on 22 October, 1980
Equivalent citations: AIR1981KANT78, ILR1981KAR460, 1981(1)KARLJ217, AIR 1981 KARNATAKA 78, ILR (1981) 1 KANT 460 (1981) 1 KANT LJ 217, (1981) 1 KANT LJ 217
JUDGMENT
1. This appeal is by the defendant and is directed against the judgment and decree dated 15-2-1972 of the Principal Civil Judge, Tumkur, in R. A. No. 39 of 1967 affirming the judgment and decree dated 31-10-1966 of the Additional Munsiff, Tiptur, in O. S. No. 595 of 1964.
2. On 29-9-1964, the original respondent/plaintiff who is now dead and is represented by his legal representatives instituted O. S. No. 595 of 1964 for a permanent injunction to restrain the defendant from interfering with his alleged peaceful possession of 6 items of agricultural lands detailed in the schedule to the plaint.
3. The plaintiff alleged that he was in possession of the plaint schedule properties having purchased them on 2-7-1945 from one Smt. Lingamma, and that the defendant without any manner of right, title and interest' thereto was trying to interfere with his possession and the same should, therefore, be prevented by a permanent injunction.
4. In resisting the suit, the defendant denied the allegations made in the plaint. He pleaded that Lingamma from whom the plaintiff obtained title and possession had no right, title and interest in the plaint schedule properties. He also alleged that the properties originally belonged to one Kalaiah and that his wife Smt. Chikkamma, who succeeded to the same, had gifted them to him. He asserted that Kalaiah was in possession of the properties and not the plaintiff.
5. On the pleadings, the trial Court framed appropriate issues and the parties placed oral and documentary evidence in support of their respective cases. By his judgment and decree dated 31-10-1966 the learned Munsiff found that the plaintiff was in possession of the Properties and not the defendant and the latter was trying to interfere with the possession of the former with out any manner of right and accordingly decreed the plaintiff's suit which was unsuccessfully challenged by the defendant before the learned Civil Judge in R. A. No. 39 of 1967.
6. On 29-6-1972, the defendant filed this appeal, inter alia urging that the decree obtained by his predecessor in interest against the plaintiff's predecessor in interest in, O. S. No. 597 of 1942-43 operates as res judicata. At the hearing of the appeal before Venkata ramaiah, J. (as he then was), the defendant prominently urged the aforesaid ground in respect of items Nos. 1 to 4 of the plaint schedule properties, though such a plea had not been specifically raised in his written statement or in his first appeal before the learned Civil Judge. On 1-9-1977, His Lordship framed an additional issue as here under :
Whether the plaintiff is barred by the rule of res judicata from contending that Lingamma and her father-in-law had interest in the suit Items I to 4 in view of the decree passed in O. S. No. 597 of 1942-43 on the file of the Munsiff, Tiptur?
and directed the learned Munsiff to permit both parties to file their additional pleadings on that issue, record all such evidence that they propose to place on that issue, record his finding on that issue and submit the same to this Court. Before Venkata ramiah, J., as also before me, the defendant has not challenged the decrees of the Courts below in respect of Items Nos. 5 and 6 of the plaint schedule properties and, therefore, this appeal is confined to the decrees of the Courts below only in respect of Items Nos. 1 to 4 of the plaint schedule properties.
7. In pursuance of the order of Venkata ramiah, J., the parties filed their amended pleadings and examined some more witnesses. On a consideration of the pleadings as amended and the evidence placed before him, the learned Munsiff has recorded his finding on 6-3-1980 and submitted the same to this Court. As the finding recorded by the learned Munsiff is in favour of the plaintiff, the defendant has filed his objections to the same challenging the said finding.
8. At this stage itself, it is useful to notice the amended pleadings, the additional evidence placed by the parties and the finding of the learned Munsiff thereto.
9. In the amended plaint filed on 9-12-1977, the plaintiff has alleged that after the purchase of the properties from Smt. Lingamma, he was in possession of the properties openly, notoriously and adversely to the interests of the defendant and has perfected his title to those properties by adverse possession and prescription. Secondly, he has alleged that the defendant has acquiesced and waived all his rights to the properties. Both these pleas urged by the plaintiff do not touch on the additional issue framed, on which alone a finding was called for by this Court, they require to be ignored.
10. In his amended written statement filed on 20-12-1977, the defendant urged that the decree made in O. S. No. 597 of 1942-43 in respect of the plaint schedule properties operated as res judicata and the plaintiff's suit was not maintainable.
11. Even though the evidence to be placed and recorded should have been limited to the additional issue, the plaintiff examined one more witness, as if his suit was for declaration of title and for permanent injunction and the defendant examined as many as three more witnesses. On the evidence on record, the learned Munsiff concluded (i) that the plaint schedule properties were not identical to the properties that were the subject-matter in O. S. No. 597 of 1942-43; (ii) that the decree in O. S. No. 597 of 1942-43 to which the plaintiff was not a party did not operate as res judicata and (iii) that Lingamma had valid and good title to the properties and, therefore, the plaintiff had acquired valid title to the properties.
12. Sri. M. V. Seshadri, learned Counsel for the appellant has contended that the decree made in O. S. No. 597 of 1942-43 operates as res judicata and the present suit filed by the plaintiff was not maintainable.
13. Sri. Yoganarasimha, learned counsel for the respondent urged that the decree in O. S. No. 597 of 1942-43 which was an exparte decree, to which the plaintiff was not a party, does not operate as res judicata.
14. One Kalaiah from whom the defendant claims to have derived title and possession to the properties had instituted O. S. No. 597 of 1942-43 on 1-4-1943 in the Court of the Munsiff, Tiptur for a permanent injunction against Kikiraiab and his wife Smt. Lingamma, who were defendants Nos. 1 and 2 respectively in the said suit and two others to restrain them from interfering with his alleged peaceful possession of the plaint schedule properties which was resisted by the defendants. But, on 24-6-1944, on which day the said suit was set down for trial, the defendants were absent and the prayer of their learned counsel for an adjournment was refused and an ex parte decree was made on that day by the learned Munsiff. The legal effect of that decree was that the Court proceeded that the plaintiff was in possession of the properties as on the date of his suit and a permanent injunction restraining the defendant from interfering with the possession of the plaintiff was granted on that day. There is no dispute that the said decree (Ext. D-12) has become final.
15. The defendant claims that the properties that were the subject-matter of O. S. No. 597 of 1942-43 are the very properties for which the plaintiff has filed the present suit. But, on a consideration of the evidence, the learned Munsiff has concluded that they are not identical. But, the factual position appears to be that they are not exactly identical and that Items Nos. 1 to 4 of the present suit are portions of lands to which Kalaiah bad laid his claim in O. S. No. 597 of 1942-43, though on the identity or the exact location, there is no agreement between the parties.
16. Kalaiah's suit was only for a permanent injunction. He neither claimed title to the properties, nor that could be adjudicated by the Court. The plaintiff, in the present suit, was not a party to that suit and he is not the legal representative of any of the defendants that had suffered the decree in O. S. No. 597 of 1942-43. As a transferee from one of the defendants in O. S. No. 597 of 1442-43, the plaintiff in the present suit claims to be in possession of the properties as on the date of his suit in his own right. On these facts now found, the question for consideration is whether a decree for permanent injunction against the transferor would operate as res judicata against his transferee who is not a party to the previous suit. On this question, the learned' Munsiff has no doubt held referring to all the rulings cited before him, as either applicable or not applicable to the case, that the decree in O. S. No. 597 of 1942-43 (Exhibit D-12) does not operate as res judicata as against the plaintiff. But, there is little or no reasoning in the aforesaid conclusion reached by the learned Munsiff and I, therefore, propose to ignore the same and examine the question without the benefit of his views.
17. Sri Seshadri, who addressed very elaborate and painstaking arguments, stated that he has not been able to lay his hands on a direct ruling of any Court on the precise question with which Sri. Yoganarasimha also agreed. Both counsel relied on a large number of rulings to drive home their respective viewpoints. But, as the question is not covered by any direct ruling of the Supreme Court or this Court or any other Court according to the counsel and as far as I am able to find, I first propose to examine the question from the legal principles that have a bearing on the question.
18. A decree for a permanent injunction is granted if the Court finds that the plaintiffs in possession as on the date of his suit and not otherwise. What is decided in such a suit is only the fact of possession and nothing else. At this stage, without concerning ourselves with whether there is any distinction and difference between ex parte decree and a decree after contest, we can examine the question on the promise that there was a decree for permanent injunction made in favour of the predecessor in title of the defendant against the predecessor in title of the plaintiff.
19. A detailed discussion as to what is 'ownership' and 'Possession' is not necessary for the case. But, jurisprudentially and legally 'ownership' and 'possession' are not one and the same." At least one of the characteristics of 'ownership, is that its duration is indeterminate (vide Salmond Oil Jurisprudence --- 12th Edn. at p. 247) which is not true of possession. Ownership and possession way be found in the same person or in different persons also. Possession, in fact, is a relationship between a person and a thing (vide page 270 of the same book). Salmond succinctly brings out the distinction between 'ownership' and 'possession' in these words : --
"Ownership, as we saw, consists of a combination of legal rights, some or all of which may be present in any particular instance; and such rights imply the existence of legal rules and a system of law. With possession this is not so. A possessor is not so much one who has certain rights as one who actually has possession. Whether a person has ownership depends on rules of law; whether he has possession is a question that could be answered as a matter of fact and without reference to law at all".
On these principles, it is difficult to hold that possession of a person safeguarded by a decree for permanent injunction in favour of one, would enure to the benefit of another person and bind any person other than the original judgment debtor or his legal representatives. When that is so, is it possible to legally bind the transferee only on the basis of the decree obtained against his transferor without reference to the factual position for reasons with which we are not concerned? In my opinion, the answer must be clearly in the negative.
20. Let me now examine whether a decree for permanent injunction obtained by Kalaiah in O. S. No. 597 of 1942-43 (Exhibit D-12) against Lingamma from whom the plaintiff claims to have derived title, operates as res judicata against the plaintiff.
21. Section 11 of the Civil P. C. is the legislative exposition of the common law maxim memo debet his vexari pro una at eadem causa. The scope, ambit and the limitations to which the rule of res judicata and Section 11 of the Code are subject, have been explained by the English Courts, the Privy Council our Supreme Court, this Court and various other High Courts in a large number of decisions and a reference to all of them is neither necessary nor desirable.
22. In the celebrated Duchess of Kingston's case, ((1776) 20 State Tr 355) that also being one of the leading, cases, Sir Williams de Grey, afterwards Lord Walsingham. (vide A selection of Leading Cases by Smith, Vol. II, 13th Edition at page 644) stated the principle of res judicata in these words that have become classical:
"What has been said at the bar is certainly true, as a general principle, that a transaction between two parties, in judicial proceedings, ought not to be binding upon a third; for it would be unjust to bind any person who could not be admitted to make a defenc4 or to examine witnesses, or to appeal from a judgment he might think erroneous; and therefore the depositions of witnesses in another cause in proof of a fact, the verdict of a jury finding the fact, and the judgment of the court upon facts found, although evidence against the parties, and all claiming under them, are not in general, to be used to the prejudice of strangers. There are some exceptions to general rule, founded upon particular reasons, but, not being applicable to the present subject, it is unnecessary to state them.
From the variety of cases relative of judgments being given in evidence in civil suits, these two deductions seem to follow as generally true; first, that the judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive, between the same parties, upon the same matter, directly in, question in another court; secondly, that the judgment of a court of exclusive jurisdiction directly upon the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another Court, for a different purpose. But, neither the judgment of a concurrent or exclusive jurisdiction is evidence of any matter which came collaterally in question, though within their jurisdiction, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment".
The numerous cases decided thereafter have not departed from the above principles.
23. That the plaintiff was not a party to the earlier suit and is not also the legal representative of Lingamma is not in dispute. But what is seriously pressed is that the plaintiff should be held to be a privy or a person claiming under the same title as of Lingamma and he is, therefore, bound by the decree against Lingamma. On the distinction between 'ownership' and 'possession' noticed earlier, it would be difficult to hold that the plaintiff is litigating under the same title and that the decree obtained by Kalaiah in O. S. 597 of 1942-43 operates as res judicata against him.
24. The word 'privy' has different meanings in different contexts. Wharton's Law Lexicon defines the terms 'Privy' and 'Privies' thus:
"Privy --- having a participation in some Act, so as to be bound thereby, see the word in this sense in the statutory implied covenant in Part VI of the Second Schedule of the Law of Property Act, 1925, and Woodhouse v. Jenkins, (1832) 9 Bing 431. Also a participation in interest or knowledge."
Privies --- those who are partakers or have an interest in any action or thing or any relation to another. They have been said to be of six kinds: -
(1) Privies in blood, such as the heir to his ancestor, or between coparceners.
(2) Privies in representation, as executors or administrators to their deceased testator or intestate.
(3) Privies in -estate, as grantor and grantee, lessor and lessee, assignor and assignee, etc. (4) Privities, in respect of contract, are personal privities, and extend only to the persons of the lessor and lessee, or the parties to the contract or assignees upon a fresh contract or novation with the assignee.
(5) Privies, in respect of estate and contract together, as where the lessee assigns his interest, but the contract between lessor and lessee continues, the lessor not having accepted the assignee in substitution.
(6) Privies in law, as the lord by escheat, a tenant by the courtesy, or in dower, the incumbent of a benefice, a husband suing or defending in right of his wife, etc. See Jac, Law Diet; Co. Litt. 271 a.
A judgment in a suit for injunction is not a judgment in rem and binds only the parties to the suit. Broadly 'privies' are of three kinds viz., (i) 'privies' in blood; (ii) 'privies' in estate and (iii) 'privies' in law. The plaintiff is not a 'privy' in blood and a 'privy' in law. But, the question is whether he is a 'privy' in estate.
25. The suit filed by Kalaiah as also the suit filed by the plaintiff are not for declaration of title or their ownership. Both the suits are simple suits for permanent injunctions. A decree for permanent injunction does not prohibit the defendant from instituting a suit for declaration of his title and for recovery of possession from the very decree holder that has obtained a decree for permanent injunction. On the very first principle stated by Sir William de Grey in Duchess of Kingston's case, as also on the; legal principles that distinguish ownership and possession, it is difficult to hold that a transferee is a, 'privy' in estate and the decree made against his transferor operates as res judicata against him. A decree for permanent injunction obtained by one person, against another person, cannot obviously bind all other persons and ignore the factual changes that take place with regard to possession. If that is not the position, then it ignores all legal and factual changes that take place and stamps that decree as if it is a covenant running with that land. With all the anxiety of law to safeguard possession, acceptance of such a proposition,~ would even defeat the very safeguards provided by law and would create innumerable problems in safeguarding possession. In this view also, the Court should be loth to accept the extreme proposition that the plaintiff, the transferee is a 'Privy' in estate and the decree obtained by Kalaiah against Lingamma, operates as res judicata against him. From this it follows, that the decree in O. S. No. 597 of 1942-43 (Exhibit D-12) cannot operate as res judicata against the plaintiff.
26. An injunction does not run with the land. An injunction only acts in personam or against a person. Both these principles are firmly established legal principles (vide Somnath Honnappa Bennalkar v. Bhimrao Subrao Patil, ILR (1974) Kant 1506.)
27. Sri Seshadri urged that the ratio in the ruling of Somnath Honappa Bermalkar's case or the principles accepted therein to a case of assignment of a decree for permanent injunction had no application to a case of legal obligation sought to be fastened against a transferee from a judgment debtor.
28. The word 'obligation' has different meanings in different contexts. A detailed discussion as to what is obligation and the law of obligations is not necessary for this case. Salmond defines an obligation as hereunder:
"An obligation is the vinculum juris, or bond of legal necessity, which binds together two or more determinate individuals.........
An obligation, therefore, may be defined as a proprietary right in personam or a duty which corresponds to such a right."
Roscoe Pound in his 'Jurisprudence' defines the said term as hereunder :
"Conception and Definition. In the Institutes obligation is defined thus: "An obligation is a bond of right and law by which we are bound by a necessity of performing some act according to the laws of our State". A modern civilian defines it thus: "Obligation is a juridical relation between two persons in virtue where of one of them called 'creditor' has the right to exact a certain performance from the other, who is called 'debtor'. The obligation has therefore the effect of binding the one to the other. It forms what we call a bond of law (translation of the Latin term vinculum juris). This relation is called a credit (creance) when considered from its active side in the person of the creditor. It is called a 'debt' when one considers it from the passive side in the person of the debtor."
29. In my opinion, whatever meaning we may attach to the term obligation, the ratio in Somnath Honnappa Bennalkar's case (ILR (1974) Kant 1506) or the principles on which that ruling was rendered cannot be distinguished as urged by Sri Seshadri. For this reason and others, earlier stated, I hold that the decree obtained by Kalaiah in O. S. No. 597 of 1942-43 against Lingamma does not operate as res judicata against the plaintiff. I, therefore, answer the additional issue in the negative.
30. Sri Seshadri next contended that the decision of the Courts below that had ignored the entries in the record of rights and other revenue records was contrary to law. Elaborating his contention Sri Seshadri maintained that in the revenue records, the names of the plaintiff and defendant were found against the disputed lands and on those entries the Courts below could not have reached the conclusion that the plaintiff was in exclusive possession of the disputed lands.
31. An entry in the record of rights or other revenue records is not conclusive and only raises a rebuttable presumption. An entry in the record of rights or other revenue records has necessarily to be considered in conjunction with all other evidence that is placed in a case and cannot be the sole basis to decide one way or the other against one or the other party. On a consideration of the evidence placed by the parties including the revenue records, the Courts below have concurrently found that the plaintiff was in possession as on the date of suit and the defendant was trying to interfere with his possession and he was, therefore, entitled for a decree for injunction. At the highest the decisions of the Courts below, in particular of the first appellate Court, may be an erroneous finding of fact which may even be perverse. But, still as pointed out by the Privy Council in Mst. Durga Choudharain v. Jawahir Singh Choudhari ((1890) 17 Ind App 122 (PC)) and the Supreme Court in Deity Pattabhirama Swamy v. S. Hanymayya (AIR 1959 SC 57), this Court cannot correct that error under Section 100 of the Code, as it stood prior to 1-2-1977 that governs this case or thereafter also. For these reasons, I see no merit in the contention of Sri Seshadri and I reject the same.
32. Sri Seshadri lastly contended that the learned Munsiff in recording his finding on the additional issue framed by this Court, should not have examined the title to the properties and held that Lingamma had valid title to the properties and, therefore, the plaintiff had acquired a valid title to the properties.
33. Sri Yoganarasimha did not rightly support the finding of the learned Munsiff on the title of Lingamma or the tide derived bi the plaintiff.
34. Earlier, I have set out the additional issue framed by this Court on which issue only the learned Munsiff was called upon to record his finding. The additional issue framed did not permit the plaintiff to convert his suit into a suit for 'declaration of tide and for a permanent injunction. In the original plaint, the plaintiff had not sought for declaration of title and, therefore, the same was not in issue at any stage of the proceedings. In this view, the criticism of Sri Seshadri that the finding of the learned Munsiff is beyond the scope of enquiry directed by this Court and cannot be sustained is well founded. As it is only a finding, which can be accepted or rejected by this Court, I reject the same without expressing any opinion thereto. As and when that issue arises for determination, the same will have to be decided on its own merits, without reference to the finding recorded by the learned Munsiff.
35. Before parting with this case, I deem it proper to notice a few interesting features on the findings recorded by the learned Munsiff.
36. The order made by Venkata ramiah, J. on 1-9-1977 was made in exercise of the powers conferred by O. 41, R. 25 of the Code. By no stretch of imagination the said order was an order of remand made by this Court under O. 41, R. 23 of the Code. A remand under O. 41, R. 23 finally disposes of an appeal and directs the subordinate Court to decide the 'case in terms of a remand order, But an order made under O. 41, R. 25 does not dispose of the appeal and the same continues to be on the file of the appellate Court. Rule 25 only enables an appellate Court to frame additional issues and call for findings from a subordinate Court, and that is what was done in the present case. But, still the learned Munsiff in the very first paragraph of his finding observes that this Court has remanded the case after framing an additional issue. After having commenced his discussion with that premise the learned Munsiff fortunately slipped into correctness and did not finally dispose of the matter, recorded his findings and submitted the same to this Court. A Judicial Officer cannot- use legal terms in such a loose manner. But, as nothing turns on that, I propose to leave it there except to draw the attention of the learned Munsiff to avoid such inaccuracies in future.
37. Earlier, I have noticed one other serious infirmity committed by the learned Munsiff in permitting the plaintiff to amend his plaint, though the same did not really touch on the additional issue framed by this Court, recording evidence and even recording a finding on the question of title. It is hardly necessary to point out that the learned Munsiff should have strictly confined himself to the additional issue framed by this Court and should not have permitted the parties to lead evidence on any other issue much less digress himself to record a finding on the question of title that was wholly unnecessary to the additional issue framed by this Court and also the suit laid by the plaintiff. A court must strictly confine itself to the questions to be decided by it in a case and more so, a subordinate Court is in duty bound to confine itself to the questions referred to it. It cannot travel and decide all matters as if there are no limitations placed in the exercise of its powers as has happened in this case. An endless and purposeless enquiry into all matters apart from clouding the issues, would unnecessarily increase the costs of the parties and severely cut into the time that has to be lawfully spent by an overcrowded Court in determining a case. I do hope that the learned Munsiff will not commit such errors and avoid them in future.
38. Another infirmity I have noticed is that the learned Munsiff is in the habit of referring to every decision that is cited at the bar and the ratio if any that is relied on by the counsel and then state that, that ruling has no application to the case. In my view, this is not a satisfactory way of dealing with the rulings that are cited at the bar. A ruling of a superior Court cannot be followed or distinguished on facts only and disposed of by stating that it is either applicable to the case or not applicable to the case. After all no case is an authority on facts and what binds a subordinate Court is only the principle enunciated by a superior Court or the ratio of that ruling and that principles alone should guide a Court in determining the questions that arise for determination. It would not be proper to distinguish a case by expressing in one sentence that that ruling has no application to the case of the parties, as that is the tenor in which the learned Munsiff has distinguished all the cases or has applied them to the case. The question that arises for determination must be precisely formulated and if more than one ruling, on the same point, is cited in support of that question, it would be more profitable for the Court to refer to them under the same question and deal with them instead of referring to each and every came and then stating that Ike principle or the ratio in that case has no application to the case.
39. Lastly, one other aspect that requires to be noticed is this. In the order made on 1-9-1977 Venkata ramiah, J. while directing the parties to appear before the learned Munsiff on 19-9-1977 directed the learned Munsiff to record his finding on the additional issue and submit the record with his finding thereto to this Court within three months from that date. As directed by this Court, the parties appeared befor4 the learned Munsiff on 19-9-1977. But, unfortunately, the learned Munsiff recorded his finding only on 6-3-1980 and submitted the same on 15-3-1980, which was received by this Court on 19-3-1980. From this it is clear that the learned Munsiff has not kept to the time schedule prescribed by the order made by Venkata ramiah, J. An examination of the order sheet discloses that the delay in recording his finding and submitting the same to this Court cannot be characterized as wholly unjustified. 'But that by itself does not dispense with the requirensent to appraise this Court well before the expiry of time and request for extensiom of time which, without any doubt, would have been granted. At least as a matter of courtesy, if not as a legal requirement, the learned Munsiff, while submitting his finding would have done well to request this Court to condone the delay in submitting his finding. I have found such omissions by the subordinate Courts in more than one case and I need hardly impress on the subordinate Courts the necessity to endeavor to comply with an order made by a superior Court and if it finds that there is any difficulty for complying with any order made by a superior Court, it is in ditty bound to address the superior Court about its difficulty and seek for extension of time to comply with the order made by a superior Court. I do hope that the learned Munsiff and subordinate Courts will not give -room for such lapses at least in future.
40. In the light of my above discussion, hold that there are no grounds to interfere with the judgments and decrees of the Courts below and I, therefore, dismiss this second appeal. But, in the circumstances of the case, I direct the parties to bear their own costs to all the Courts.
41. Lot a copy of this judgment be sent to Sri. Shekhargowda Patil, Munsiff, wherever he is working for his future guidance.
42. Appeal dismissed.