TaxTMI 
TaxTMI 
2009 (9) TMI 1095
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.... being O.S 125 of 1976, which came to be later renumbered as Suit No. 5 of 1978, impleading therein the temple as the first respondent and the members of the Trust Committee as respondent Nos. 2 to 6. Three persons who were alleged to be those to whom the site on which the theatre stood was sought to be sold by the Trustees, were also impleaded as defendant Nos. 7 to 9. The prayer made in Suit No. 5 of 1978 was for an injunction restraining the defendants from interfering with the plaintiff's possession till the expiry of the period of lease. 5. During pendency of the said suit (Suit No. 5 of 1978), the Trustees filed two suits being numbered as O.S. Nos. 6 of 1978 and 7 of 1978, claiming arrears of rent from the lessee. All these three suits were tried together and a common judgment was delivered. The trial court held that the lessee was entitled to retain possession of the property for the duration of the lease. This finding was given in view of the statement made by the defendants in their written statement that they had no intention to interfere with the plaintiff's possession till the expiry of the lease. Accordingly, Suit No. 5 of 1978 was dismissed. 6. The Trus....
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.... for the appellant submitted that the finding in the judgment in O.S. No. 5 of 1978 had become res judicata because no appeal had been filed against the judgment in the aforesaid suit. On the other hand, Shri L. Nageshwar Rao, learned senior counsel, assisted by Shri G. Masilamani, learned senior counsel, submitted that the finding in O.S. No. 5 of 1978 had not become res judicata. 14. I am not inclined to agree with the submission of the learned Counsel for the appellant for the simple reason that the prayer in O.S. No. 5 of 1978 was only that the plaintiff/lessee should not be evicted by the defendants' landlord forcibly. In their written statement in the aforesaid suit, the defendants (appellants before us) stated that they were not going to forcibly evict the plaintiff-lessee. Once this statement was given in the written statement by the defendants in O.S. No. 5 of 1978, the aforesaid suit (O.S. No. 5 of 1978) should have been straightway dismissed, as the defendants had stated that they were not going to forcibly evict/dispossess the plaintiff. It was wholly unnecessary for the trial court to go into any other question, including the question of title in O.S. No. 5 of 1....
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.... J. 21. I have read the draft judgment prepared by my learned brother, Justice Markandey Katju in this appeal and which was sent to me on 14.8.2009. Unfortunately, I cannot agree with the draft judgment, rendered by His Lordship, dismissing the appeal. 22. I am of the view that the appeal should be allowed and the reasons for the said view are stated herein below. 23. This appeal has been filed on behalf of the temple by the trust committee and also by one of the trustees impugning the judgment and order of Madras High Court dated 6.1.2003 whereby the High Court dismissed the appeal filed by the present appellants, inter-alia, holding that there is no merit in the appeal. 24. The question involved in the appeal would appear from the discussion of the relevant facts in this case. 25. The property in question belonged to the appellants and was leased out to respondent Nos. 1 to 6 for a period of 15 years with effect from 8.11.1967 and which expired in 1983. 26. On or before 1.7.1976, the property in question was sold by the appellants to defendant Nos. 7, 8 and 9 and to that effect a notice was given to the lessees on 14.10.1976 calling upon them to pay the outstand....
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....by the appellants in favour of defendant Nos. 7 to 9 and while challenging the same the following averments have been made: ...They (the appellants herein) have no right to sell the property as the same is trust property belonging to the 1st defendant and such alienation would be totally void being a breach of trust.... 38. In paragraph 5 of the plaint, it is further averred as under: ...The alienation in favour of the defendants 7 to 9 being void, they have no title to the property.... (Emphasis supplied) 39. Opposing the plaint, in the written statement which was filed by the present appellants it was stated that the suit is highly speculative in nature. It was also asserted that the sale made by the present appellants in favour of defendant Nos. 7 to 9 is valid in law and it was made clear that the plaintiff in the said suit (respondent No. 1 to 6 herein) have no right to challenge the transfer of ownership by the landlord as they admitted the title of the defendants (the appellants herein). 40. An additional written statement was filed in that suit by the appellants herein in which in paragraph (1) the following averments were made: 1) The....
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.... judgment, the trial Court by its order dated 6.11.1982 held as under: In the result, O.S. 5/78 is dismissed with cost. O.S. 6/78 is decreed in part with cost as per the calculation above. Regarding O.S. 7/78, since the court has held that the entire property is one, there cannot be any lease amount for the rear portion and it dismissed with cost. 47. Against the said judgment and decree, an appeal was filed by the lessees i.e. respondent Nos. 1 to 6 herein only against the decree of the II Addl. District Court, Pondicherry dated 6.11.1982 in O.S. No. 6/78. This is clear from page 84 of the paper book. 48. In the said appeal before the learned Single Judge of the Madras High Court, the present appellants were parties and they specifically raised the question that the finding of title in favour of the present appellants by trial Court cannot be disturbed by the High Court as it was not hearing any appeal from the judgment in O.S. 5 of 1978. 49. Ignoring that objection, the learned Single Judge of the High Court held there was no occasion or need for the learned trial Judge to frame the issue, namely, "whether the suit property is not the personal property of Sethur....
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....ues are those disputed questions on which the parties are desirous of obtaining the decision of the Court (Black's Law Dictionary 8th Edition, 831). 57. In the instant case from the pleadings which have been discussed above, it appears that in the plaint an issue relating to title of the present appellant in respect of the temple property was raised by the lessees i.e. respondent Nos. 1 to 6 herein and consequently a dispute has also been raised about the character of the temple property and the lessees are claiming that the property is a public trust. 58. The appellants herein in their written statement and in the additional written statement controverted those contentions and specifically questioned the competence of the lessees (respondent Nos. 1 to 6) to raise any dispute as regards the title of the present appellant. 59. Therefore, within the meaning of Order XIV Rule 1 of the Code, an issue has to be framed by the Court about (a) the title of the present appellants and also about (b) the nature and character of the temple property. Once such issues are framed, it is the duty of the Court to pronounce its judgment on those issues and the trial Court has done that ....
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..... Therefore, it is clear that Mulla has not given any definite opinion and made it clear that answer to such a question depends on "the facts of each case". The test is to find out whether the issue was "necessary" to be decided for adjudicating on the principal question and was decided. 66. In the instant case in the plaint, the respondents 1 to 6 directly challenged the right of the trustees to alienate their property inasmuch as they have averred that the property is a public trust and cannot be alienated without sanction under Section 26 of the Act and alienation which has been made by the trustees in favour of defendant Nos. 7 to 9 is void as they have no title. This is the clear case in the plaint. 67. Therefore, unless a decision on this aspect and the title of the trustees is rendered, the further decision, namely, the dismissal of the suit cannot be reached. It may be a suit for injunction for an order restraining the defendant Nos. 7 to 9 to interfere with the possession of the lessees but nonetheless the question of title of the trustees was prominently raised and the pleadings to that effect have already been referred to above. 68. As a legal proposition, it is....
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....is Court in Commissioner of Endowments and Ors. v. Vittal Rao and Ors. (2005) 4 SCC 120. 75. In Sajjadanashin (supra) this Court held whether a question is directly and substantially in issue has to be decided on examination of the plaint, the written statements. 76. Going by this test, I am of the opinion that the question of title of the appellant and the nature of the trust property is directly and substantially in issue. The lessees - respondent Nos. 1 to 6 herein invited a finding on these issues. Having done so, they cannot wriggle out of the same just because the finding had gone against them in the judgment and more so when they did not file any appeal against such finding. The said finding can only be reversed by a competent court only in a manner known to law. 77. So the decision of this Court in Sajjadanashin (supra) does not support the case of the lessees - respondent No. 1 to 6 in this case. 78. The decision in the case of Tamil Nadu Wakf Board v. Larabsha Darga, Panruti (2007) 13 SCC 416, does not show throw any light on the controversy in this case. In Tamil Nadu Wakf Board (supra) it has been held in paragraph 11 at page 421 of the report that in the ea....
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.... or negligently, to raise a question of res judicata by an exceptio, no such question will be submitted whereas, if such a question is properly raised, it must be considered whether the issue has been rendered res judicata pro veritate accipitur.]. (Emphasis supplied) 82. English Common Law which is influenced by Roman Law also shares the same concept and it has been held by Justice Willes in Nelson v. Couch (1863) 15 CB (NS) 99, at 108 that `Res-judicata is entirely consistent with the rule of the Civil Law'. 83. Paul A. McDermott in his famous treaties on Res-judicata and Double Jeopardy referring to the concept of Res-judicata held: Such an idea is not only a fundamental principle of the common law but is also to be found in Roman law, Hindu law, African tribal law, Native American Indian law, Canon law and many modern civil codes. Such apparently universal acceptance of the need for a rule of this kind has led one English judge to eulogise it in the following terms: the rule of res judicata, while founded on ancient precedent, was dictated by a wisdom which was for all time. 84. In the words of Coke, Res-judicata stands for the "inviolable sanc....
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.... connection I may refer to the observations of Chief Justice Rankin in a full Bench decision of the Calcutta High Court in the case of Tarini Charan v. Kedar Nath AIR 1928 Cal. 777. The Chief Justice held as under: ...the question whether the decision is correct or erroneous has no bearing upon the question whether it operates or does not operate as res-judicata 92. The learned Chief Justice further held as under: ...To say, as a result of such disorderly procedure, that the previous decision was wrong on a point of law, and that therefore it may be disregarded, is an indefensible form of reasoning. 93. If the Court reaching the finding has the jurisdiction to do so, such a finding, in the absence of an appeal, cannot be diluted merely on the ground that the reasoning is weak or that the finding is unnecessary, even though it was on a question which was directly and substantially in issue between the parties. 94. An action at law cannot be equated with a game of chess where the players can change and choose their stand according to their convenience. Some sanctity has to be attached to a finding which has been reached by a Court on the basis of the pleadi....