IMPORTANT POINT
The principles of res judicata have its own limitations.

JUDGMENT

S.B. Sinha, J. —

1. Leave granted.

2. Whether principle of res-judicata is applicable to the facts and circumstances of this case, is the question involved herein. The basic fact of the matter is not in dispute. Second respondent was the owner of the properties. He by reason of a registered Deed of Sale dated 25.11.1987 transferred his right, title and interest in favour of the appellant.

3. First respondent, however, filed a suit against the appellant herein in the Court of District Munsif, Thiruvaiyaru praying for a decree for permanent injunction alleging that the land in suit admeasuring 3 cents was the subject matter of an oral agreement of sale by and between himself and the second respondent herein. It was contended that the second respondent had been in possession of the said land in terms of a patta executed under the Kudiyiruppu Act being Act 40 of 1971.

The contention of the appellant, on the other hand, was that he had been put in possession of the suit land by the second respondent in terms of the aforementioned deed of sale dated 25.11.1987.

4. The learned Trial Judge in the said suit, inter alia framed the following issues.

“i) Whether on the date of the suit the plaintiff was in possession of the suit property?

ii) Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?

iii) To what else (sic) relief, the plaintiff is entitled to?”

5. The question as to whether the respondent had been put in possession in terms of an oral agreement of sale was not in issue. Respondent No. 2 as noticed hereinbefore was not impleaded as a party. A decree for specific performance of contract was not prayed for in the said suit. Neither any averment was made nor in law the same could be made that he had been put in possession by way of a part performance of contract as envisaged under Section 53A of the Transfer of Property Act.

6. The learned Trial Judge, however, held that the first respondent was in possession of the land in suit as on the date of the institution of the suit and thus granted a decree for permanent injunction.

7. Appellant thereafter filed a suit for declaration of title and recovery of possession, which was marked as O.S. No. 182 of 1989. Both the respondents herein were impleaded their as parties therein. First respondent herein also filed a suit for specific performance of contract against the appellant as also the respondent No. 2. The said suit was registered as O.S. No. 93 of 1990.

Both O.S. No. 182 of 1989 and O.S. No. 93 of 1990 were consolidated. By a judgment and order dated 7.11.1990, the learned Trial Judge while dismissing the aforementioned suit for specific performance of contract filed by the first respondent allowed the suit of the appellant for declaration of his title and confirmation of possession.

8. Two appeals were preferred thereagainst by the first respondent which by reason of a judgment and order dated 28.8.1991 were dismissed by District Judge, Thanjavur (West). First respondent preferred two second appeals before the High Court.

The High Court opined that the only substantial question of law raised by the appellant before it (respondent No. 1 herein) was the applicability of the principles of Res-Judicata.

Relying upon some stray observations made by the learned Trial Judge in the said O.S. No. 402 of 1987, it was held that as possession of the property had been delivered on the basis of a purported oral agreement of sale, the principles of res-judicata would be attracted.

9. Mr. V. Prabhakar, the learned counsel appearing on behalf of the appellant would submit that as no issue was framed in regard to the purported oral agreement of sale by and between respondent No. 1 and 2 nor any specific finding having been arrived at by the learned Trial Judge in the said O.S. No. 402 of 1987, the impugned judgment is wholly unsustainable.

10. Section 11 of the Code of Civil Procedure provides that the Court will have no jurisdiction to try a suit or