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TMI Blog1995 (10) TMI 224X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants had promised to pay on November 11, 1976 but they did not pay the amount and continued to remain in possession which they should have surrendered for having not paid the above stipulated amount. The suit was contested by the appellants on the grounds inter alia that they were tenants under the plaintiffs, namely Padam Ram, and were already in possession. They also pleaded that the document dated September 1, 1976 was obtained by fraud and undue influence and was, in any case, void being against the provisions of Himachal Pradesh Tenancy and Land Reforms Act under which they have become owners of the land. A number of issues were framed in this suit, one of which, namely, issue No.5, read as under: "5. Whether the defendant is in possession of the suit land as tenant under the plaintiff since samvat 2005 as alleged?" The suit was dismissed by the Trial Court (Senior-Sub- Judge, Kinnaur) by Judgment and order dated January 15, 1981 with the findings, inter alia, that the agreement was without consideration and was hit by the provisions of Section 91 of the Himachal Pradesh Tenancy and Land Reforms Act. It also recorded a finding on Issue No.5 that the defendan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants having already been held to be tenants under the respondents by the Trial Court in the earlier suit, the suit for possession was not maintainable and ought to have been dismissed by the District Judge as also by the High Court as was done by the Trial Court, it was also contended that the findings recorded by the Trial Court on the status of the appellants in the previous suit that they were tenants of the land in suit should still be treated to hold the field notwithstanding its reversal by the lower appellate court as the lower appellate court, had ultimately decided the appeal in their favour with the result that they being the successful party had no occasion to file the appeal and challenge the findings. In this situation, it is contended, the findings of the trial court cannot be treated to have been reversed. We will deal with Order 2 Rule 2 of the Civil Procedure Code first. It provides as under: "R.2. Suit to include the whole claim. (1) Every suit shall include the whole of the claim which the plaintiff be entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould succeed the defendant who raises the plea must make out (i) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed. From this analysis, it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar." In view of the above, what is to be seen in the instant case is whether the cause of action on the basis of which the previous suit was filed, is identical to the cause of action on which the subsequent suit giving rise to the present appeal, was filed. If the identity of causes of action is established, the rule would immediately become applicable and it will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the simple reason that an appeal under Section 96, or, for that matter, under Section 100 of the Civil Procedure Code, lies only against a decree and not against a finding. In this situation, it is contended, the appellate judgment insofar as it relates to the finding on Issue No.5, is liable to be ignored. It is pointed out that if this is done, the original findings recorded by the Trial Court on the status of the appellants that they are the tenants of the land under the respondents, would revive and operate as res judicate against the respondents who cannot be granted the relief of possession. We may, at the very outset, point out that in the subsequent suit, the appellants in their capacity as defendants did not plead the rule of res judicata. As a matter of fact, they did not in their written statement even refer to the findings recorded by the Trial Court in the previous suit nor did they claim that they were tenants of the land in suit under the respondents. Their main defence was that they were in possession over the land in suit since Samvat 2005 and had, therefore, acquired title by adverse possession. They also pleaded that the suit was barred by time and was, in any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y from Samvat 2005 and had, therefore, acquired title by adverse possession. Consequently, in the subsequent suits, the issue which was raised and tried in the previous suit was not raised, framed or tried and no finding, therefore, came to be recorded as to whether the defendants were tenants of the land in suit. It is true that the instant suit which is the subsequent suit, is between the same parties who had litigated in the previous suit and it is also true that the subject matter of this suit, namely, the disputed land, is the same as was involved in the previous suit but the issues and causes of action were different. Consequently, the basic requirement for the applicability of rule of res judicata is wanting and, therefore, in the absence of pleadings, in the absence of issues and in the absence of any finding, it is not open to the learned counsel for the appellants to invoke the rule of res judicata on the ground that in the earlier suit it was found by trial court that the appellants were the tenants of the land in dispute under the respondents. Let us now consider the plea regarding the effect of an adverse finding recorded by the court against a party in whose favour t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him in such suit. Hence, such adverse finding cannot operate as res judicate as against him in a subsequent suit. The High Court of Andhra Pradesh in Bansi Lal Ratwa v. Laxminarayan & Anr. [1969 (2) Andhra Weekly Reporter] and the Full Bench of the High Court of Patna in Arjun Singh & Anr. v. Tara Das Ghosh & Anr. [A.I.R. 1974 Patna 1] have taken the view that an appeal would not lie against mere adverse finding unless such finding would constitute res judicata in subsequent proceedings. We are, however, not concerned with this aspect of the matter in the present case nor are we concerned with the earlier aspect as the plea of res judicata having not been raised in the written statement, the appellant cannot be permitted to raise the plea here. In view of what we have held above, the points convassed before us are decided against the appellants. We, however, cannot overlook the fact that the appellants are in possession over the land in suit for a considerably long time and the respondents themselves at one stage had pleaded (in the previous suit filed by them) that the land had already been sold to the appellants and that the appellants were liable to pay the sale consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X
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