1982 Supreme(AP) 205

Andhra Pradesh High Court
Judges : A.SEETHARAM REDDY
VERUPANDA SEETHARAMA SWAMY RAMA - Appellant
Versus
ALLAM UGRA NARASIMHA MURTHY - Respondent
Decided On : 07-14-82

A judgment in an earlier suit for injunction is not a judgment in rem and binds only the parties to the suit.

Headnote:

RES JUDICATA - FAMILY ARRANGEMENT - PARTITION - LEASE - PRIVY - INJUNCTION - SUIT FOR INJUNCTION - EARLIER SUIT DISMISSED - RESERVATION OF RIGHT TO FILE REGULAR SUIT - LESSEE NOT BOUND BY JUDGMENT AGAINST LESSOR - UNREGISTERED LEASE - MONTH TO MONTH TENANCY - COLLATERAL PURPOSE - AGRICULTURAL LEASE - TRANSFER OF PROPERTY ACT, SECTION 106, 107, 117 - CODE OF CIVIL PROCEDURE, SECTION 11.

Fact of the Case:

Plaintiff filed a suit for injunction alleging that his brother-in-law agreed to part with some properties earned by him on the advice of the elders for the sake of family peace, that there was a family arrangement reduced to writing, that by virtue of the said family arrangement, the plaint schedule land and other properties fell to the share of his brother-in-law, that his brother-in-law was in exclusive possession and enjoyment of the plaint schedule land and other properties since then, that his brother-in-law leased out the plaint schedule land to him under an agreement dated 6-10-1976, that he is in possession and enjoyment of the same as a lessee of his brother-in-law, that the defendants 1 to 3 and their brother maheswararao, who have been enjoying the properties that fell to their share, have been trying to disturb his possession of the plaint schedule land, that they also committed theft of the coconuts in the said land, that the value of the coconuts stolen away comes to Rs. 1406-90ps and that his possession, therefore, be protected by way of permanent injunction and damages in the sum of Rs. 1403-40ps be awarded towards the value of the coconuts.

Finding of the Court:

1. The judgment in the earlier suit would constitute res judicata in a later suit, even though the final judgment in Second Appeal arising out of the earlier suit, reserved a right in favour of the plaintiff for establishing his rights and claims by filing a regular suit. 2. The lessee is a privy to the lessor and the judgment against the lessor in an earlier suit filed by him for an injunction would bind the lessee in a later suit to which the lessor is not a party within the meaning of Section 11 of the Code of Civil Procedure.

Issues: 1. Whether the judgment in an earlier suit filed for permanent injunction wherein the plea of family arrangement and consequential partition of the properties (hereof was rejected, would constitute res judicata in a later suit, also filed for injunction, even though the final judgment in Second Appeal arising out of the earlier suit, reserved a right in favour of the plaintiff for establishing his rights and claims by filing a regular suit ? 2. Whether the lessee is a privy to the lessor and the judgment against the lessor in an earlier suit filed by him for an injunction would bind the lessee in a later suit to which the lessor is not a party within the meaning of Section 11 of the Code of Civil Procedure ?

Ratio Decidendi: 1. The primary test of res judicata depends upon the identity of title in the two litigations and not the identity of the actual property involved in the two cases. 2. The principle of res judicata is not affected by a subsequent contrary view taken by a superior Court in any other case. A wrong decision by a Court having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review which the law provides. 3. "Matter in issue" in Section 11 of the Code of Civil Procedure is distinct from the subject-matter and the object of the suit as well as from the relief that may be asked for in it and the cause of action on which it is based, and the rule of res judicata requiring the identity of the matter in issue will apply even when the subject-matter, the object, relief and the cause of action are different. It is the "matter in issue" and not the subject-matter of the suit that forms the essential test of res judicata. 4. A remark by a Court in dismissing of a suit that the plaintiffs are at liberty to file a fresh suit without there being a formal application under Or. 23, R. 1, will not amount to a permission to bring a fresh suit under O. 23 R. 1 of the Code of Civil Procedure. 5. Permission to withdraw suit does not imply recognition of maintainability of a suit nor has the Court power to provide to that effect in the order. 6. Where in a previous title suit, one of the issues framed is left undecided wrongly holding that the issue could not be gone into because of certain infirmities and the suit is dismissed, the question with regard to the same issue gets barred by constructive res judicata in a subsequent suit, as it is deemed to have been impliedly decided in a previous suit. 7. The Courts in this country have no power unlike the courts of Equity or Common Law in England to dismiss a suit with liberty for the plaintiff to bring a fresh suit for the same matter, or to enter a non-suit. Such power of the Indian courts is limited to questions of form, as in the case (1) of misjoinder of parties, or of the matters in suit, (2) where the material document has been rejected for not having a proper stamp, and (3) if there has been an improper valuation of the subject-matter of the suit. 8. The following must be proved for successfully raising a plea of res judicata: (i) that the litigating parties must be the same or between the parties under whom they or any of them claim; (ii) that the subject-matter of the suit must also be identical; (iii) that the matter must be finally decided between the parties; and (iv) that the suit must be decided by a Court of competent jurisdiction. 9. The lessee is a privy in estate and, therefore, a judgment against his lessor will be a bar in a later suit by the lessee in respect of the subject-matter in issue. 10. A lawful judgment in the absence of any fraud or collusion against a lessor binds his lessee even though he is not a party to the judgment. 11. Under Section 117 of the Transfer of Property Act, a lease for agricultural purposes need not be in writing, but if effected in the case of a lease from year to year or any term exceeding a year, it requires registration under Section 17 of the Registration Act. If un-registered the lease will be inadmissible in evidence under Section 49 of the Registration Act, and other evidence of its terms will be precluded under Section 91 of the Evidence Act. However, it can be used for collateral purposes of proving the possession. 12. Under Section 117 of the Transfer of Property Act the provisions as to notice contained in Section 106 of the said Act are not proprio vigore applicable to agricultural leases, nonetheless they will be binding as rules of justice, equity and good conscience. 13. A lessee can claim raiyati interest on the basis of valid lease which can be created under a written document which should be registered. 14. The tenancy of agricultural land from year to year or exceeding a year or reserving a yearly rent can be made only by a registered instrument as laid down in Sec. 107 of the Transfer of Propecty Act. Such tenancy cannot be established by proving the actual possession and payment of yearly rent, as it does not fulfil the requirements of Section 107 of the Transfer of Property Act.

Final Decision: Appeal allowed.