2005 Supreme(SC) 1419

SUPREME COURT OF INDIA
R.C.Lahoti, CJI., C.K.Thakker : P.K.Balasubramanyan, JJ.
Ramadhar Shrivas
Versus
Bhagwandas
Case No. : Civil Appeal No. 6597 of 2005 (Arising out of SLP (C) No. 15191 of 2003)
Date of Decision : 10/27/05
Advocates Appeared: Niraj Sharma : Amitabh Verma : Ashok Mathur

Headnote:M.P. Accommodation Control Act, 1961—Section 12—Civil Procedure Code, 1908—Section 11 Explanation IV—Constructive res-judicata—Eviction suit on ground of non-payment of rent, bona fide need and need to demolish building which was old and dilapidated—Defendant respondent asserted that he was neither tenant of previous owner nor of plaintiff who claimed to have purchased property from previous owner—Trial Court relying on judgment in earlier civil suit filed by plaintiff for possession wherein defendant was held to be a tenant under previous owner of property and thus became tenant under plaintiff after its purchase decreed suit—1st appellate Court set aside eviction decree holding that there was no relationship of landlord and tenant between plaintiff and defendant—Judgment was maintained in second appeal—Appeal—Ownership right of plaintiff came to be established by competent Court in earlier proceedings and defendant was held to be the tenant—It was not open to defendant to deny title of plaintiff—Judgment in earlier suit would operate res-judicata—Rule of constructive res-judicata applied to the case—If defendant was claiming to be in lawful possession in any capacity other than a tenant he ought to have put forward such a claim as ground of defence in earlier proceedings—Decree passed by trial Court was liable to be restored.

       Held : Having heard learned counsel for the parties and having considered the rival contentions, in our opinion, the appeal deserves to be allowed and the judgment and decree passed by the Trial Court deserves to be restored by setting aside the judgment and decree passed by the lower Appellate Court as well as by the High Court. It is clear from the evidence adduced by the parties in the former suit as also the decree passed by the Trial Court in Civil Suit No. 40-A of 1982 that Hiralal was the absolute owner of the suit property who had sold the property to appellant-Ramadhar. The appellant, therefore, had become full owner of the property. In the said suit, the respondent herein was also joined as one of the defendants. The respondent-Bhagwandas in that suit contended that the property was joint family property and Hiralal had no right to dispose of that property since other family members had also interest therein. The contention which was expressly taken was specifically negatived by the Court and decree was passed in favour of the plaintiff. Moreover, an order of eviction was also passed against defendant No. 1 Ganpat as he was found to be in unauthorized occupation of the property. Keeping in view the evidence on record that Bhagwandas-present respondent-defendant No. 2 in that suit was paying Rs. 10/- p.m. as rent to Hiralal, the Court observed that he could not be held trespasser and no decree could be passed by a Civil Court against him. The Court at the same time, observed that defendant-Bhagwandas could not produce any evidence as to how he was occupying the property as an owner. Since Hiralal was the owner of the property and defendant-Bhagwandas was occupying the property and paying Rs. 10/- per month as rent to Hiralal, after the sale of property by Hiralal to plaintiff, Bhagwandas became tenant of the plaintiff. (Para 16)

       In our opinion, therefore, it was not open to defendant-Bhagwandas to put forward the claim in the present proceedings that Hiralal was not the absolute owner of the property and the property was joint family property which Hiralal could not have sold to the appellant. It was also not open to the defendant to deny the title of the plaintiff since in appropriate proceedings, a finding had been recorded as to ownership of property and a decree had been passed by a competent Civil Court holding the plaintiff to be the owner who had purchased it from its real owner Hiralal. The Trial Court, in our opinion, was wholly justified in passing the decree in favour of the plaintiff and against the defendant. The learned counsel for the appellant is also right in contending that the finding as to ownership of the plaintiff had attained ‘finality’ in the earlier proceedings in the decree passed a Civil Court. So far as the ownership rights of the plaintiff are concerned, they had not been challenged by defendant-Bhagwandas and hence that finding would operate as res judicata. (Paras 17 and 18)

       In the case on hand, it is clear that in the earlier suit, the Court had recorded a clear finding that defendant-Bhagwandas was neither the owner of the property nor he could show any right as to how he was occupying such property except as a tenant of Hiralal. If Bhagwandas was claiming to be in lawful possession in any capacity other than a tenant, he ‘ought’ to have put forward such claim as a ground of defence in those proceedings. He ought to have put forward such claim under Explanation IV to Section 11 of the Code but he had failed to do so. The doctrine of constructive res judicata engrafted in Explanation IV to Section 11 of the Code thus applies to the facts of the case and the defendant in the present suit cannot take a contention which ought to have been taken by him in the previous suit and was not taken by him. Explanation IV to Section 11 of the Code is clearly attracted and defendant-Bhagwandas can be prevented from taking such contention in the present proceedings. (Paras 23)