9911796707
TMI Blog2003 (12) TMI 623X X X X Extracts X X X X X X X X Extracts X X X X ..... a sale deed on 3.3.1966 in favour of Mahadevan and his wife Saroja. The plaintiff, appellant herein, purchased the property from them as per sale deed dated 10.3.1980. The defendant was in occupation of the entire suit property on the date of the present suit. Prior to the commencement of the present suit, there had been two other rounds of litigation which are very relevant and need to be noted. In the year 1957, the defendant-respondent herein filed Original Suit No. 2512 of 1957 claiming a share in the suit property, alleging himself to be the adopted son of Thiruneelakanda. The suit was dismissed. That litigation achieved a finality on 8.1.1964 when an appeal preferred by the defendant was dismissed by the High Court of Madras. In the year 1965, one of the predecessors-in-title of the plaintiff (appellant herein) filed a suit for declaration of title and for possession over 240 sft. area (situated on the upper floor of the building standing over the suit property) against the respondent. The suit was numbered as O.S. 1907 of 1965 and after trial decreed on 30.1.1968. The decree was put into execution. Execution Petition No.2458 of 1975 was pending when the defendant produce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been brought on record by the plaintiff to provide additional support to his claim for entitlement to possession, and as a piece of evidence supporting the finding of the Trial Court which was already in his favour. The First Appellate court allowed the plaintiff's application, took the judgment and decree on record and then dismissed the appeal filed by the defendant. The defendant preferred a Second Appeal in the High Court. In the High Court, the plaintiff once again appears to have relied on the said judgment and decree to sustain the judgments and decrees of the two courts below in his favour and here, his step of placing reliance over the said judgment and decree boomeranged against him. The High Court formed an opinion that the issue as to title and possession over the suit property was already decided in the suit filed by the predecessor-in-title of the plaintiff (O.S. No.1907 of 1965) and therefore the present suit was barred by principle of res judicata. Solely on this reasoning, the High Court has, vide its judgment dated 25.4.1996, allowed the appeal preferred by the defendant and directed the suit filed by the plaintiff to be dismissed. The plaintiff, respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of res judicata cannot be allowed to be urged. Not only the plea has to be taken, it has to be substantiated by producing the copies of the pleadings, issues and judgment in the previous case. May be in a given case only copy of judgment in previous suit is filed in proof of plea of res judicata and the judgment contains exhaustive or in requisite details the statement of pleadings and the issues which may be taken as enough proof. But as pointed out in Syed Mohd. Salie Labbai (Dead) By Lrs. & Ors. Vs. Mohd. Hanifa (Dead) by Lrs. & Ors. (1976) 4 SCC 780, the basic method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suit and then to find out as to what had been decided by the judgment which operates as res judicata. It is risky to speculate about the pleadings merely by a summary of recitals of the allegations made in the pleadings mentioned in the judgment. The Constitution Bench in Gurbux Singh Vs. Bhooralal (1964) 7 SCR 831, placing on a par the plea of res judicata and the plea of estoppel under Order II Rule 2 of the Code of Civil Procedure, held that proof of the plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cord the judgment and decree in the previous suit, wherein his predecessor-in-title was a party, as a piece of evidence. He wanted to urge that not only he had succeeded in proving his title to the suit property by the series of documents but the previous judgment which related to a part of this very suit property had also upheld his predecessor's title which emboldened his case. The respondent thereat, apprised of the documents, did not still choose to raise the plea of res judicata. The High Court should not have entered into the misadventure of speculating what was the matter in issue and what was heard and decided in the previous suit. The fact remains that the earlier suit was confined to a small portion of the entire property now in suit and a decision as to a specified part of the property could not have necessarily constituted res judicata for the entire property, which was now the subject matter of litigation. We cannot resist observing that if at all the plea of res judicata was to be availed and applied then that should have been for the benefit of the plaintiff inasmuch as his predecessor-in-title had succeeded in proving his title to part of the property in the ea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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