Punjab-Haryana High Court
Bohar Singh And Anr. vs Dalip Kaur And Ors. on 15 July, 2003
Equivalent citations: (2003)135PLR882
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
JUDGMENT Adarsh Kumar Goel, J.
1. The respondents Filed a suit for declaration of title in the suit land on the basis of a registered sale deed dated 2.4.1967, averring inter-alia that land was under mortgage and plaintiff redeemed the same and took possession of the mortgage land also. Defendants got mutation entered in their favour and mutation of redemption was also claimed to be false. Defendants illegally mortgaged the suit land in favour of a Cooperative Bank which did not blind the plaintiffs. Defendants contested the suit inter-alia on the basis of an earlier decree.
2. In view of evidence led by the plaintiffs mainly in view of sale deed Ex.P1, title of the plaintiff was held to be proved. Previous judgment and decree Exhibit D1 and D2 were held not to be res judicata as per previous suit was for injunction and question of title was not directly and substantially in issue.
3. In view of the these findings, the trial Court partly decreed the suit to the effect that the plaintiffs were owners to the extent of 5/32 share out of land measuring 281 kanals 18 marlas described in head (i) of the plaint and they had purchased 5/32 share in land measuring 0 kanal 16 marlas, Khasra No. 176 mentioned in sale deed Ex.P1. It was held that defendants were owners of about 25 kanals 1 marla of land and mortgage of any land belonging to the plaintiffs will not blind the plaintiffs. These findings were affirmed in appeal. Hence this second appeal.
4. Learned counsel for the appellants submitted that finding of the courts below on the issue of resjudicata was erroneous and substantial question of law whether judgment in the former suit for injunction will operate as res judicata on the question of title was involved. He submitted that in a previous suit for injunction, one of the issues was whether plaintiffs were owners in possession, while finding was only that they were in possession, there was no finding of their title. Reliance is placed on judgment of the Supreme Court in Sulochana Amma v. Narayana Nair, A.I.R. 1994 S.C. 152, Para 8. In the said judgment, following observations were made which have been relied on by the learned counsel for the appellants:-
".... It is settled law that in a suit for injunction when title is in issue for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties. When the same issue is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit the decree in the injunction suit equally operates as re judicata..."
5. The above decision was, however, explained in a later decision of the Apex Court in Sjjadanashin Sayed Md. v. Musa Dadabhai Ummer, A.I.R. 2000 S.C. 1238, Para 25. Referring to an apparently contrary decision of Madras High Court in Seliamman Ayyanar Uthiva Samasundareswarar Temple v. Rajanga, A.I.R. 1965 Madras 355, it was held that both the decision should be understood in the context of tests to be applied for holding whether a question was directly or substantially in issue or incidentally in issue and it depends on facts of an individual case whether finding on the question of title is considered necessary for grant of injunction and was directly and substantially in issue or otherwise. Thus, it cannot be held that the decision relied on by the learned counsel for the appellants is to be read as holding that finding on a question of title in every injunction suit is to be treated as res judicata, whether or not the question of title is directly and substantially in issue in an injunction suit, as it sought to be contended by learned counsel for the appellants. The Apex Court in Sajjadanashin Sayed (supra) referred to the parameters for deciding the question whether the issue was directly or incidentally involved. The court has to see whether finding on the question of title was immediate foundation of the earlier decision as opposed to a collateral or subsidiary foundation i.e. only a part of reasoning for supporting the contention whether previous judgment could not have been rendered without deciding question of title, whether issue was necessary to be decided and was decided. Mere framing of issue is not enough to hold that such an issue was directly and substantially in issue.
6. Applying the test approved by the court in Sajjadanashin Sayed (supra), it is seen that in the previous judgment, though technically, an issue existed whether plaintiff was owner in possession, the judgment was based on the examination of question of possession and finding that plaintiff, being in possession, was entitled to injunction was recorded. Question of title was not directly or substantially in issue as rightly held by both the courts below.
For the above reasons, I do not find any merit in this second appeal. No substantial question of law is involved nor the finding of the courts below is perverse.