IMPORTANT POINT
Plea of res-judicata is basically founded on identity of the cause of action in two suits and therefore it is necessary for defence to establish the cause of action in previous suit.

Headnote:Civil Procedure Code, 1908-Section 11-Res-judicata-Foundation for plea must be laid in pleadings and then issue be framed and tried-Plea not properly raised in pleadings would not be permitted to be raised for 1st time at stage of appeal-Plea is capable of being waived-Title suit decreed by trial Court in favour of plaintiff-appellant-1st appellate Court confirmed decree by dismissing appeal-During 1st appeal stage, plaintiff-appellant filed certified copy of judgment where in earlier suit for declaration filed by predecessor in interest of plaintiff in respect of part of suit land against defendant had been decreed-High Court in second appeal dismissed suit holding barred by res-judicata-Appeal-Plea of res-judicata if at all was to be availed and applied then that should have been for benefit of plaintiff-When plea had neither been raised nor proved, there was no res judicata-Decree passed by trial Court and upheld in appeal was liable to be restored.
       Held : The plea as to res judicata was not taken in the Trial Court and the First Appellate Court by raising necessary pleadings. In the First Appellate Court the plaintiff sought to bring on record the judgment and decree in the previous suit, wherein his predecessor-in-title was a party, as a piece of evidence. He wanted to urge that not only he had succeeded in proving his title to the suit property by the series of documents but the previous judgment which related to a part of this very suit property had also upheld his predecessor s title which emboldened his case. The respondent thereat, apprised of the documents, did not still choose to raise the plea of res judicata. The High Court should not have entered into the misadventure of speculating what was the matter in issue and what was heard and decided in the previous suit. The fact remains that the earlier suit was confined to a small portion of the entire property now in suit and a decision as to a specified part of the property could not have necessarily constituted res judicata for the entire property, which was now the subject matter of litigation. We cannot resist observing that if at all plea of res judicata was to be availed and applied then that should have been for the benefit of the plaintiff inasmuch as his predecessor-in-title had succeeded in proving his title to part of the property in the earlier suit. We fail to understand how the judgment in the previous suit can in any way help the defendant-respondent in the present proceedings. We are clearly of the opinion that the plea of res judicata has neither been raised nor proved. There is no res judicata. The issue as to title was rightly determined by the Courts below on the basis of evidence adduced in this case. That finding has to be restored. (Paras 14 and 15)
       The correct position of law, which should apply to the facts of the case, may now be stated. To the extent to which the plaintiff s predecessors-in-title have succeeded in securing decree for declaration of title and recovery of possession over 240 square feet area of the upper floor of the building, the plaintiff should secure possession by executing that decree. As to the remaining property, the plaintiff must be held entitled to a decree in the present suit. (Para 17)

JUDGMENT

R.C. Lahoti, J.-The property in suit consists of a piece of land together with building, super-structure and other construction including wells and fencing of the property bearing house and ground No. 9, Padavattamman Koil St., Kondithope, Madras - 1, and O.S. No. 6008 - R.S. No. 20 and R.S. No. 20/1 C.C. No. 8 patta No. 461/1954-55 and admeasuring 1817 sft., more particularly described in the Schedule to the plaint dated 19th August, 1984.

2. The facts, which at this stage are no longer in dispute and stand concluded by the findings of fact by the courts below, may briefly be noticed. The property originally belonged to one Chakrapani who purchased the same on 13.6.1921. He executed a sale deed in favour of one Damodaran on 8.5.1923. Damodaran in turn executed a sale deed in favour of Thiruneelkanda Nainar on 17.10.23. Thiruneelakanda executed a settlement deed on 1.5.1950 in favour of his wife Lakshmi and son Loga Ganapathi. They executed a sale deed on 3.3.1966 in favour of Mahadevan and his wife Saroja. The plaintiff, appellant herein, purchased the property from them as per sale deed dated 10.3.1980.

3. The defendant was in occupation of the entire suit property on the date of the present suit.

4. Prior to the commencement of the present suit, there had been two other rounds of litigation which are very relevant and need to be noted. In the year 1957, the defendant-respondent herein filed Original Suit. No. 2512 of 1957 claiming a share in the suit property, alleging himself to be the adopted son of Thiruneelakanda. The suit was dismissed. That litigation achieved a finality on 8.1.1964 when an appeal preferred by the defendant was dismissed by the High Court of Madras.

5. In the year 1965, one of the predecessors-in-title of the plaintiff (appellant herein) filed a suit for declaration of title and for possession over 240 sft. area (situated on the upper floor of the building standing over the suit property) against the respondent. The suit was numbered as O.S. 1907 of 1965 and after trial decreed on 30.1.1968. The decree was put into execution. Execution Petition No. 2458 of 1975 was pending when the defendant produced before the Executing Court an injunction issued by one of the civil courts restraining execution of the decree. The Executing Court naturally closed the execution proceedings. The order of injunction and details thereof are not available on record. In what terms the Execution Petition was closed and what happened thereafter to such execution proceedings is also not ascertainable from the record. The search for such information need not detain us in deciding the present appeals as it would be taken care of in such independent proceedings as would be indicated during the course of this judgment and also looking at the manner in which these appeals are being disposed of.

6. On 19.8.1984, the appellant filed the present suit for declaration of title and recovery of possession over the suit property from the defendant. On 7.8.1985, the defendant filed the written statement. Suffice it to note here itself that though the defendant denied the title of the plaintiff over the suit property, there is no plea as to the suit being barred by the principle of res judicata taken in the written statement. The only other plea taken in the written statement is one of adverse possession which is in the following words:

"This defendant has been in continuous, uninterrupted, open possession and enjoyment of the suit property for more than the prescriptive period and had thus perfected his title to the suit property by adverse possession.

This defendant is in occupation of the suit property in his own right. This defendant has been paying the Corporation tax, Water and Sewarage tax and Urban Land tax for the suit property for all three years for more than the prescriptive period."

The Trial Court and the First Appellate Court decreed the suit.

7. It appears that during the pendency of the First Appeal, the plaintiff (appellant

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2003 Supreme(SC) 1282

IMPORTANT POINTPlea of res-judicata is basically founded on identity of the cause of action in two suits and therefore it is necessary for defence to establish the cause of action in previous suit.

Cases Referred (7)

IMPORTANT POINT
Plea of res-judicata is basically founded on identity of the cause of action in two suits and therefore it is necessary for defence to establish the cause of action in previous suit.