TaxTMI 
TaxTMI 
2014 (10) TMI 941
X X X X Extracts X X X X
X X X X Extracts X X X X
....ised property are barred by the principle of res judicata from challenging the findings of the Trial Court especially the Trust's ownership of the demised property, since the said Tenants have filed only one appeal, i.e. arising from O.S.6/78, without assailing identical conclusions arrived at by the Trial Court in O.S.5/78 and O.S.7/78. 2. The uncontroverted facts are that the husband of the first Respondent/Tenants (namely, Kannaiya Chettiar along with another person Venkatarama Keddiar) the suit land on lease from Sethurama Chettiar on 1.3.1953 for a period of 12 years on a monthly rent of Rs. 150/-. The Tenants were permitted to construct a cinema theatre on the suit land at their own cost, which they have done in the name and style of 'Raja Talkies', which is still in existence. In 1959 one of the partners died, resulting in the husband of Respondent No.1 assuming sole proprietorship of 'Raja Talkies'. On 8.11.1967 a fresh Registered Notaire Lease Deed was executed for a period of 15 years commencing from 1.1.1968 between the husband of Respondent No.1 and the Appellant Trust, Gangai Vinayagar Temple through its Trustee's President namely, Shri Sethurama Chettiar. Consequent ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....blishing the leasehold right of the plaintiffs and to be in possession of the schedule mentioned property till the end of the lease period viz. 1-1-1983; and (ii) For permanent injunction restraining the defendants, their agents, servants and other representatives from interfering with the plaintiff's peaceful possession and enjoyment of the suit property till 1-1-1983. (iii) Directing the defendants to pay to the plaintiff the costs of the suit; and (iv) Grant such other relief as this Honourable court may be pleased to order in the circumstances of the case. It is noteworthy that the Trust had not pressed for the framing of an Issue predicated on Section 116 of the Evidence Act. In the plaint in O.S.5/78, the Tenant had pleaded that the Defendants "have no right to sell the property as the same is Trust property belonging to the 1st Defendant and as such the alienation would be totally void being a breach of trust..... The alienation in favour of the Defendants 7 to 9 being void, they have no title to the property..... The cause of action arose on 30.6.1976 when Defendants 2 to 6 purported to convey the suit property to Defendants 7 to 9 and, thereafter, when Defendants are t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hereupon assumed the character the "former suit". Since the Trust had also not filed an appeal against O.S.7/78 res judicata became operative against it on two aspects - firstly that there were two tenancies and secondly that any arrears of rent had separately accrued other than what was claimed in O.S.6/78. 5. It is in similar circumstances that a Coordinate Bench had concluded in Premier Tyres Limited vs. Kerala State Road Transport Corporation, 1993 (Suppl.) 2 SCC 146, that the effect of non-filing of an appeal against a decree is that it attains finality and that this consequence would logically ensue when a decree in a connected suit is not appealed from. It permeates, as in the case in hand, into the sinews of all suits (O.S.5/78 and O.S.7/78) since common Issues had been framed, a common Trial had been conducted, common evidence was recorded, and a common Judgment had been rendered. It seems to us that the Division Bench had adopted the dialectic of the challenge to the title being irrelevant in O.S.5/78 in order to distinguish and then digress from the decision in Premier Tyres. Facially, all the factors are common to each suit, namely, the commonality of Issues, Trial and....
X X X X Extracts X X X X
X X X X Extracts X X X X
....om the Appellant's land for the purposes of fishing and agriculture and thereafter divert the water back through the same land to the river. The Appellant who was cultivating prawn-fishing on his land aggrieved by the construction of the bund believing it to have hampered his prawn fishing; therefore, he filed a suit for perpetual and mandatory injunction against the respondents. The respondents in turn filed a suit for injunction against the appellants and claimed rights of easement. The two suits were disposed of separately by the Court of Munsif and decrees were passed in both the suits to the effect that the respondents were to have rights of easement only with respect to agriculture but not for fishing. From the decrees, two set of appeals were preferred by both the parties, leading to four appeals altogether. The District Court dismissed all the appeals and thereby confirmed the decrees. The respondents then filed second appeals against the decisions which arose from the appellant's suit but no second appeal was preferred from the appeals arising from their own suit. Before the High Court in Second Appeal, the Appellant promptly pressed the preliminary objection of res judica....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ops run by the parties in that suit was his self-acquired property; consequently, that he was entitled to money due on account of tobacco delivered to the respondent's shop. The Trial Court tried both the suits together and determined them by way of two decrees on the same date, holding that the shops in question belonged to the concerned individuals. The respondent appealed against both the decrees before the High Court, and the two appeals were decided in continuation under separate headings. The High Court while reversing the findings of the Trial Court held the shops to be part of joint family trade in tobacco and thus dismissed the money suit. The appellant thereafter approached this Court assailing the judgment and decree passed in the partition suit, whilst leaving the judgment and decree in the money suit unchallenged. Expectedly, the issue of res judicata was evoked by the respondent, which was sought to be doused by the appellant by contending, inter alia, that no certificate of fitness under the unamended Article 133(1) (c) of the Constitution of India was granted with respect to the money suit and also that parties were not common in both the suits. This Court while dis....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... mention that the Tenants had also denied that any additional land had been taken on rent. Of the six Issues which came to be struck in O.S. 6/78 and O.S. 7/78, the following are relevant and, therefore, reproduced:- "(2) Whether the entire suit property ('A' and 'B' schedule) in possession of the defendants are covered by the lease deed dated 8-11-67 or whether there was any subsequent oral agreement in respect of 'B' schedule property alone and if so, what is its lease amount? (3) Whether the suit property belongs to a public temple governed by the Act. If so, whether the suit is maintainable for want of sanction under Section 26 of the Hindu Religious Institutions Act." 10. As already noted above, O.S.6/78 was decreed only for a sum of Rs. 268/- holding, inter alia, that the Tenants cannot adjust the advance of Rs. 7000/- as against the rent claim of Rs. 11,468/- without the sanction of the landlord; that since the suit property was not owned by a public temple but by a private trust, being the personal property of Shri Sethurama Chettiar, sanction under Section 26 of the Hindu Religious Institutions Act was not necessary; and that the Transferees had become the absolute owne....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of fact and/or of law. While discharging this primary function, the Court is expected to peruse the pleadings of the parties in order to extract their essence, analyse the allegations of the parties and the contents of the documents produced by them, and, thereafter, proceed to frame the Issues. In our opinion, so far as O.S.5/78 is concerned, the question of the title of the property would ordinarily remain irrelevant to that litigation for two reasons. Firstly, Section 116 of the Evidence Act bars the Lessee/Licensee from constructing if not concocting a challenge vis-à-vis the title of the Lessor/Licensor, if it is the latter who has put the former in possession of the demised/licensed premises. In the case in hand, the first lease was executed by Shri Sethurama Chettiar and the renewal or the succeeding lease was between the Trust through its President, Shri Sethurama Chettiar, on the one hand, and the Tenants on the other. The Tenants, therefore, stood legally impeded and foreclosed from assailing the title of the Trust, as has been correctly concluded by the Trial Court, even though a specific Issue had not been struck in this context in O.S.5/78. There is no gainsayi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Evidence Act would not come into play in any dispute between the Tenants on the one hand and the Transferees on the other. 14. We think it prudent to extract the conclusion from the Judgment dated 6.11.1982 common to O.S.5/78, O.S.6/78 and O.S.7/78, since it is the fountainhead, the fulcrum of the legal nodus which we have to unravel. The Trial Court has opined thus - When no trustee member or the Government is claiming any right over the suit property, it is not known why the Tenant should entertain a doubt as to whether real title has passed on to the present purchasers of the suit property. The suit property is therefore not a public temple governed by the Act and since the property is found to be the private property of Sethrama Chettiar, sanction O/S.26 of the Hindu Religious Institutions Act is therefore not necessary. The suit property being the personal property of Sethurama Chettiar and the same having been sold to defendants 7 to 9, the latter have become the absolute owners of the suit property and the plaintiffs in O.S.5/78 are stopped from challenging the title of the present landlord and they are bound to attorn the tenancy. They have no right to question the titl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat the Trust's Suits were not maintainable in law for want of necessary sanction under Section 25 of the Hindu Religious Institutions Act, 1972; that the Tenant did not admit the validity of the Sale Deed dated 1.7.1976 on the grounds that, having regard to Section 25 of the Hindu Religious Institutions Act, 1972, it was a nullity. The First Appellate Court conducted an elaborate and detailed discussions as to the nature of the Temple/Trust property in order to ascertain whether it partook of a private or a public trust. We have already highlighted that O.S.5/78 filed by the Tenants was "dismissed", nevertheless, this verdict has not been appealed against. After recording the detailed arguments on both sides, the First Appellate Court encapsulated the following points for consideration:- (i) Whether the present appeal by the plaintiff canvassing the findings of the trial court on issue numbers 2, 3 and 4 by the learned trial Judge is barred by the doctrine of resjudicata as contended by the respondents? (ii) Whether findings given by the learned trial Judge on the above issues are correct, valid in law and as such it is sustainable? (iii) Whether the plaintiff is entitled to qu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nception it had lost it subsequently. There is in fact a stark omission to discuss this aspect in the Judgment of the First Appellate Court, which therefore erred in concluding that the Trust/Landlord was a public trust and was, accordingly, incompetent to sell the Trust property. This is all the more significant since it reversed the opinion of the Trial Court without affording any opportunity of hearing to the Transferees who had not been impleaded by the Tenants in its Appeal although they were defendants in the Tenants suit; they were not before the High Court because the Tenant decided to not to appeal against the dismissal of O.S.5/78 in which it had also raised these very questions. If it is contended that all the three suits were covered by a common judgment, the Tenant ought to have impleaded the Transferees in its Appeal. 17. The Trust filed the Second Appeal before the Division Bench of the High Court of Judicature at Madras, but inexplicably and conspicuously restricted its challenge only to the opinion of the First Appellate Court vis-àvis the impact and effect of the principle of res judicata on that lis. The Trust had by that time already sold the property an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree; question arising in such proceeding and a former proceeding for the execution of that decree. Explanation VIII.- An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised. The decision rendered by three Co-ordinate Benches of this Court, namely firstly Lonankutty, secondly Prabhu and thirdly Premier Tyres have already been discussed above. 19. We must additionally advert to a Four-Judge Bench decision in Sheodan Singh vs. Daryao Kunwar (1966) 3 SCR 300, in which this Court has lucidly enumerated five constituent elements of Section 11, namely:- (i) The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue in the former suit; (ii) The former suit ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lcutta, Patna, Orissa and erstwhile High Court of Rangoon have taken contrary views. It should also be noted that there are instances of conflicting judgments within the same High Court as well. The decision of Tek Chand, J. in Full Bench Judgment of the Lahore High Court in Lachhmi vs. Bhulli [AIR (1927) Lah 289] and Full Bench Judgment of the Madras High Court in Panchanda Velan vs. Vaithinatha Sastrial [ILR (1906) 29 Mad 333] and of the Oudh High Court in B. Shanker Sahai v. B. Bhagwat Sahai [AIR 1946 Oudh 33 (FB)] appear to be the leading decisions against the applicability of res judicata. Without adverting to the details of those cases, it is sufficient to note that the hesitancy or reluctance to the applicability of the rigorous of res judicata flowed from the notion that Section 11 of the Code refers only to "suits" and as such does not include "appeals" within its ambit; that since the decisions arrived in the connected suits were articulated simultaneously, there could be no "former suit" as stipulated by the said section; that substance, issues and finding being common or substantially similar in the connected suits tried together, non-filing of an appeal against one or ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sub judice once again. Consolidation orders are passed by virtue of the bestowal of inherent powers on the Courts by Section 151 of the CPC, as clarified by this Court in Chitivalasa Jute Mills vs. Jaypee Rewa Cement (2004) 3 SCC 85. In the instance of suits in which common Issues have been framed and a common Trial has been conducted, the losing party must file appeals in respect of all adverse decrees founded even on partially adverse or contrary speaking judgments. While so opining we do not intend to whittle down the principle that appeals are not expected to be filed against every inconvenient or disagreeable or unpropitious or unfavourable finding or observation contained in a judgment, but that this can be done by way of cross-objections if the occasion arises. The decree not assailed thereupon metamorphoses into the character of a "former suit". If this is not to be so viewed, it would be possible to set at naught a decree passed in Suit A by only challenging the decree in Suit B. Law considers it an anathema to allow a party to achieve a result indirectly when it has deliberately or negligently failed to directly initiate proceedings towards this purpose. Laws of procedure....
X X X X Extracts X X X X
X X X X Extracts X X X X
....been dismissed but should have been decreed. We have also laid emphasis on the fact that the Tenant had made a specific and pointed assertion in the plaint that the transfer of the demised land by the Trust to the Transferees was not in consonance with Section 26 of the Puducherry Hindu Religious Institutions Act, 1972. We have also noticed the fact that this was an important objection raised by the Tenant in their Written Statement in O.S.6/78 and O.S.7/78. It seems to be incongruous to us to consider ownership of the demised premises to be irrelevant in O.S.5/78 but nevertheless constitute the kernel or essence or fulcrum of the disputes in O.S.6/78 and O.S.7/78. The dialectic adopted by the Court must remain steadfastly constant - if title was irrelevant so far as a claim for injunction simpliciter, it was similarly so in relation to the party having the advantage of Section 116 of the Evidence Act in respect of its claim for arrears of rent from its tenant. It would not be logical to overlook that the pleadings on behalf of the Tenant were common in all three suits, and that Issues on this aspect of the dispute had been claimed by the Tenants in all the three suits. On a holist....