Important point
The subsequent suit is barred by constructive res judicata when such plea of ownership could and ought to have been raised in the former suit.

Headnote:Civil Procedure Code, 1908—Section 11, Explanation IV—Doctrine of constructive res judicata—Applicability —Plea of bar of subsequent suit—Same issue directly and substantially in issue —House in suit was initially allotted to mother of one ‘M’ by Madurai Mills Cooperative Housing Society—After the death of his mother, ‘M’ as son inherited the right in the house—According to respondent, wife of ‘M’, as there were differences and family disputes between her husband and her, a village panchayat was held—‘M’ agreed to relinquish his right of ownership in favour of his wife and children—However, instead of honouring the commitment made in village panchayat, ‘M’ executed mortgage in favour of one ‘C’—‘M’ as mortgagor and the mortgagee jointly filed suit against respondent seeking a decree of permanent injunction simpliciter—Suit dismissed—‘M’ after obtaining a formal conveyance deed of the house from the housing society executed a registered deed of sale of suit house in favour of appellant—Appellant filed civil suit seeking declaration of title and possession from respondent and her children—Whether High Court was justified in dismissing the suit as barred by doctrine of res judicata—(Yes).
       Held : On the date of former suit, true it is that there was no formal document of conveyance of the suit house executed by the society in favour of Muthuswami. There existed on that date merely a right he had inherited in the house allotted to her late mother. Between an allottee of the house from the housing society and the person merely in occupation as licencee or member of the family, the allottee has a better title. In the former suit, the claim of Muthuswami was as an heir of his late mother who was the allottee of the house and was in possession. As against him, the claim set up by his wife was of an oral relinquishment by Muthuswami in her favour in village panchayat. Between these two competing claims of ownership and right of possession of the suit house, the husband certainly had a better right to remain in possession and, if dispossessed, to claim possession. This ground of seeking possession and permanent injunction was available to Muthuswami against his wife in support of his joint claim with his mortgagee. The aforesaid plea founded on ownership and mortgage having not been raised in the former suit, the doctrine of constructive res judicata under explanation IV to section 11 of the Code is clearly attracted. (Para 33)
       We can not prepared to accept the argument advanced on behalf of the above appellant as the successor-in-title of Muthuswami that in the absence of formal deed of conveyance of the suit house by the housing society in favour of Muthuswami, the issue of title to the suit house could neither be raised nor was raised in the former suit. On the examination of case pleaded by the parties in the former suit and the judgment rendered therein we find that the plea of ownership to the suit house was substantially involved for seeking relief of permanent injunction. Undoubtedly, such plea of ownership could and ought to have been raised in the former suit. Therefore, this subsequent suit filed by the present appellant as purchaser from Muthuswami is barred by constructive res judicata and the High Court was right in holding accordingly. (Para 34)

Judgment

Dharmadhikari, J.—In these two appeals arising out of the impugned common judgment passed by the High Court of Madras in Second Appeal, the neat question involved is one of res judicata. The trial court in its common judgment passed in cross suits jointly tried came to the conclusion that the judgment in former suit OS No. 843/74 between the predecessor-in-title of the appellant and the respondents cannot operate as res judicata to bar the present suit claiming title to the suit property by the appellant. The High Court by the impugned common judgment in Second Appeal has reversed the judgment of the two courts below and held that the judgment in former suit OS No. 843/74 decided on 28.2.1976 operates as res judicata under section 11 of the Code of Civil Procedure. Consequently, the suit filed by the appellant has been dismissed and the cross suit filed by the respondents has been decreed.

2. The facts necessary for deciding the issue of res judicata are as under:-

The property involved in the two cross suits is house door No. 206 in Harvaipatt township in Madurai, South Taluk. The house was allotted by Madurai Mills Cooperative Housing Society to mother of Muthuswami Naidu (the husband of respondent No. 1 and father of respondents 3 to 7). After the death of mother, the formal document of conveyance by the Housing Society came to be issued in favour of Muthuswami Naidu on 15.3.1975. Muthuswami Naidu executed a mortgage deed on 3.12.74 for raising a loan of Rupees three thousand from one Chhinnaswamy who was co-plaintiff with him in the former suit OS No. 843 of 1974.

3. Muthuswami Naidu as the mortgagor under mortgage deed dated 3.12.1974 and Chinnaswamy as the mortgagee jointly filed civil suit as OS No. 843/74 in the court of District Munsiff, Thirumangalam against respondent Alagammal (the wife of Muthuswami respondent No. 1 herein). The mortgagor and mortgagee filed suit simplicitor for seeking permanent injunction to restrain the respondent wife of Muthuswami from interfering with the possession of the suit house on the ground that it was owned and possessed by them.

4. The aforesaid suit OS No. 843/74 was resisted by the respondent wife pleading inter alia that when disputes had arisen in the married life of the parties, a village panchayat was called in the year 1971 in which the respondent agreed to relinquish his ownership of the suit house in favour of his wife and children for their residence on the condition that his wife would discharge dues against the house. In that suit the wife denied the existence of any alleged mortgage deed and questioned validity of the same.

5. On the pleadings of the parties in the former suit OS No. 843/74, the following issues were framed:-

1) Whether the othi deed (mortgage deed) dated 3.12.1974 executed in favour of the second plaintiff is true, valid and binding upon the defendant?

2) Whether the plaintiffs are entitled to the relief of injunction prayed for?

3) Whether the defendant was in possession of the suit property?

4) Whether the suit is bad for non-joinder of a necessary party?

5) Whether the alleged settlement pleaded by the defendant is true?

6) To what relief, if any, are the plaintiffs entitled?

6. On the first issue, the trial court held that registered mortgage deed seemed to be genuine but it was not binding as mortgagor had failed to enter the witness box to prove it. On issue Nos. 2 & 3, the trial court answered them in favour of the respondent wife by recording a finding that she had proved to be in possession of the suit house. Tax receipts evidencing payment of house tax were relied in proof of her possession. On thee findings, it was held that relief of permanent injunction to restrain the respondent wife from enjoying the suit property could not be granted. On issue No. 4 regarding the alleged settlement reached in village panchayat and relinquishment of ownership and right by Muthuswami in the suit house in favour of his wife

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2005 Supreme(SC) 868

Important pointThe subsequent suit is barred by constructive res judicata when such plea of ownership could and ought to have been raised in the former suit.

Cases Referred (5)

Important point
The subsequent suit is barred by constructive res judicata when such plea of ownership could and ought to have been raised in the former suit.