The principle of res judicata does not bar a subsequent suit for title when the prior suit did not adjudicate ownership substantively, necessitating fresh evaluation on its merits.

JUDGMENT :

Heard the learned Senior counsel appearing for the appellants.

2. There is no representation on behalf of the respondent, though the respondent is duly served.

3. This appeal is arising from the concurrent finding in a suit for declaration of title and possession. The suit is dismissed primarily on the premise that the suit is hit by principle of res judicata.

4. First Appellate Court also concurred with the finding of the Trial Court that the suit is hit by principle of res judicata.

5. This Second Appeal was admitted on 07.02.2020 to answer the following substantial questions of law:

“(i) Whether the Courts below were justified in dismissing the suit for declaration and possession on the ground that the previous proceedings for ejectment of the defendant in O.S. No.229/2005 was dismissed on the ground that the plaintiff had failed to proved his title?

(ii) Whether there was any issue regarding title that was determined by the Court in terms of Ex.P.12?”

6. The plaintiff had earlier filed a suit in respect of the same property against the same defendant in O.S.No.229/2005 for eviction of the defendant on the premise that the defendant is the tenant under the plaintiff. The defendant in the said suit disputed the tenancy as well as the plaintiff’s ownership over the property. Defendant contended that the defendant is the owner of the property.

7. The Trial Court in the said suit in O.S.No.229/2005 has framed 8 issues. Said issues are as under:

(1) Whether the plaintiff proves that the suit schedule property is (sic) belongs to him?

(2) Whether the plaintiff proves that the defendant is the tenant under him in the suit schedule property on a monthly rent of Rs.100/- from 15.06.1992?

(3) Whether the plaintiff proves that the suit schedule property is required for his personal use?

(4) Whether the plaintiff proves that the tenancy has been terminated as per law?

(5) Whether the defendant proves that the suit property is the part and parcel of their residential house bearing Assessment No.730 and have acquired title to the same by way of adverse possession?

(6) Whether the defendant proves that the suit is bad for non-joinder of necessary party?

(7) Whether the plaintiff is entitle for the reliefs as sought for?

(8) What order or decree?

8. The Trial Court recorded a finding that the plaintiff has not proved that the property belongs to him. At the same time, the Court also recorded a finding that the defendant has not established ownership over the property.

9. It is noticed that the plaintiff has not produced title deed in the said suit and consequently the suit was dismissed. Thereafter, the present suit in O.S.No.248/2008 is filed seeking declaration of title and possession.

10. Defendant again disputed the plaintiff’s ownership and also contended that the suit is hit by principle of res judicata.

11. Before the Trial Court, the plaintiff produced original sale deed pertaining to the suit property and asserted that the plaintiff is the owner and defendant is the acquiring the property under the agreement dated 15.06.1999 between the plaintiff and the defendant has not vacated the premises.

12. Trial Court concluded that issue relating to ownership is also negatived by the Trial Court in O.S.No.229/2005 and said finding has attained finality, as such the plaintiff has not established his right over the property as the said contention is hit by principle of res judicata. First Appellate Court also concluded that the suit is hit by principle of res judicata on the premise that t