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2019 (2) TMI 2145
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....he appellants are not entitled to claim compensation under Section 51 of the Transfer of Property Act 1882 [The TP Act]. 3 The genesis of the dispute needs to be explained. The property encompassing an extent of 914 acres originally belonged to Vengunadu Kovilakam of Kollengode. True to the bounties of nature, it comprised of coffee, cardamom, orange and pepper plantations. On 25 November 1897, 909 acres of the property came to be leased out to William Espants Watts Esquire for a period of 75 years. By a subsequent transfer, the leasehold rights were transferred to and vested in Anglo American Direct Tea Trading Corporation Limited ("Anglo American Corporation"). On 17 October 1931, an area admeasuring 5 acres of what is described as the bungalow site was leased out in favour of Anglo American Corporation for a period of 43 years. In 1945, Anglo American Corporation assigned its rights over the property to Amalgamated Coffee Estate Limited. 4 A suit for partition [(O S No. 1 of 1964)] was instituted by the respondents before the District Judge, Palakkad in respect of some portions of the property. The petitioners and their predecessors-in-interest were not parties. A prelimin....
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....isting interest and were in possession of the property as a consequence of which the respondents were not entitled to delivery of possession. In view of the order of the District Court, the respondents, as decree holders, were held not to be entitled to the delivery of actual physical possession of the property and their remedy would be to file a suit impleading the appellants as parties. 11 Aggrieved by the order of the District Judge, Palakkad, the respondents moved the High Court of Kerala in a proceeding described as Execution First Appeal No. 12 of 2010. By its judgment dated 29 June 2012, the High Court allowed the appeal and, while upholding the submissions of the respondents, dismissed the claim petitions filed by the appellants. 12 On 25 July 2014, a Special Leave Petition filed under Article 136 of the Constitution was dismissed by this Court in the following terms: "Heard learned senior counsel and learned counsel for the parties. Special leave petitions are dismissed. No order needs to be passed in Interlocutory Application No. 5 of 2014 made by the applicants - Ravi Varma Thampan and Sarada Thampatty - for impleadment in S.L.P. (Civil) ....
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....e judgment of a Division Bench of the High Court in the earlier proceedings, it was clarified that the court was not going into the entitlement of the appellants under Section 4(1) of the Act 1958 since "it is not a question which arises from the order on the claim petitions". The High Court clarified that it was only holding that the claim of the appellants to possess leasehold rights was without merit; (iii) When the case travelled to this Court, the appellants were granted liberty to pursue an appropriate remedy for the redressal of their grievance in regard to the payment of compensation for the improvements made by them, in accordance with law; (iv) Once the High Court had declined to enquire into the claim of compensation under the Act of 1958 and this Court had specifically kept open the right of recourse to remedies under law, the principle of constructive res judicata would have no application; (v) In Explanation IV to Section 11 of the CPC, the expression "might and ought" has to be conjunctively construed. Hence, merely because the claim for compensation under the Act of 1958 could have been raised in the earlier proceedings in the execution ap....
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....ised in the earlier proceedings. The appellants, having failed to do so, the bar of constructive res judicata is squarely attracted; (v) The claim under the Act of 1958 ought to have been raised in the earlier proceedings because of the provisions of Section 5 of the Act of 1958. Section 5 postulates that every such claim has to be raised and adjudicated upon before the decree is passed. Hence the defence of being entitled to possession, unless the value of the improvements is paid, should have been raised in the earlier proceedings; (vi) The language of Order XXI Rule 101 is peremptory. The order by the High Court constitutes a decree under Order XXI Rule 103; (vii) The question of compensation under the Act of 1958 is intrinsically connected to the claim of the appellants to retain possession until the value of the improvements alleged to have been made is paid. In the previous round of proceedings, the prayer was for the retention of possession and hence the claim could have been raised and ought to have been addressed when the decree was passed; and (viii) The second application before the ADJ was under Section 151 of the CPC. A conscious dec....
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....nts in Execution Application 38 of 2009 instituted by them in Execution Petition 7 of 2008. The reliefs which they sought were in the following terms: "A) Establishing and declaring the claim of the petitioners for possession as lessees over 274.20 acres of property included in the schedule hereunder and also included in the schedule to the execution petition; B) Declaring the respondents 1 to 6 are not entitled to dispossess the petitioners from the properties in their possession and take actual delivery of the same;" 21 Clearly, what the appellants sought was a declaration that their possession was entitled to protection in their character as lessees over 274.20 acres of the land. No claim was set up in the execution application on the basis of the provisions contained in Section 4(1) of the Act of 1958. When the proceedings were before the High Court, the appellants sought to urge that "it may be borne in mind" that they would be entitled to compensation under the Act of 1958. Besides, they also invoked Section 51 of the TP Act. The respondents objected on the ground, as the High Court recorded, "that such a case is not there in the claims and they cannot ra....
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.... "(b) "improvement" means any work or product of a work which adds to the value of the holding, is suitable to it and consistent with the purpose for which the holding is let, mortgaged or occupied, but does not include such clearances, embankments, leveling, enclosures, temporary wells and water-channels as are made by the tenant in the ordinary course of cultivation and without any special expenditure or any other benefit accruing to land from the ordinary operations of husbandry:" Section 2(d) defines the expression "tenant" as follows: "(d) "tenant" with its grammatical variations and cognate expressions includes- (i) a person who, as lessee, sub-lessee, mortgagee or submortgagee or in good faith believing himself to be lessee, sub-lessee, mortgagee of land, is in possession thereof; (ii) a person who with the bona fide intention of attorning and paying a reasonable rent to the person entitled to cultivate or let waste-land, but without the permission of such person, brings such land, under cultivation and is in occupation thereof as cultivator; and (iii) a person who comes into possession of land belonging to another person and makes impr....
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....n occupation at the time of the eviction who derived title from either of them and for which compensation had not already been paid, and every tenant to whom compensation is so due shall, notwithstanding the determination of the tenancy of the payment or tender of the mortgage money or premium, if any, be entitled to remain in possession until eviction in execution of a decree or order of court: Provided that nothing herein contained shall be construed as affecting the provisions of the Kerala Land Conservancy Act, 1957: Provided further that this section shall not apply to tenants holding lands under the Government, (2) A tenant so continuing in possession shall, during such continuance, hold as a tenant subject to the terms of his lease or mortgage, if any. 5. Decree in eviction to be conditional on payment of compensation.- (1) In a suit for eviction instituted against a tenant in which the plaintiff succeeds and the defendant establishes a claim for compensation due under section 4 for improvements, the court shall ascertain as provided in section 7 to 16, the amount of the compensation and shall pass a decree declaring the amount so found du....
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....aring the amount found due and that on payment by the plaintiff into the court of the amount found due, the defendant shall place the plaintiff in possession of the land with the improvements thereon. The provisions contained in sub-section 1 of Section 5 indicate that a determination of the amount of compensation which is payable to the tenant precedes the passing of the ultimate decree and the plaintiff would be entitled to be placed into possession conditional on the deposit in court of compensation found due. Sub-section 2 of Section 5 enables the plaintiff to seek a set off on account of money due by the defendant for rent against the amount which is found due to the defendant by way of compensation. Sub-section 3 of Section 5 provides for an eventuality where improvements have been made subsequent to the date upto which compensation for improvements has been adjudged in the decree. On account of such improvements after the passing of the decree, the amount due will be determined by the court executing the decree upon which the decree shall be varied in accordance with such order. 27 The provisions contained in the Act of 1958 came up for consideration before a two judge Be....
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....and substantially in issue in a former suit between the same parties or between parties litigating under the same title cannot be raised before a court subsequently, where the issue has been heard and finally decided by a competent court. Explanation IV enacts a deeming fiction. As a result of the fiction, a matter which "might and ought" to have been made a ground of defence or attack in a former suit shall be deemed to have been a matter directly and substantially in issue in such a suit. In other words, Explanation IV is attracted when twin conditions are satisfied: the matter should be of a nature which might and ought to have been made a ground of defence or attack in a former suit. Justice S Rangarajan (as the learned Judge then was) sitting as a Single Judge of the Delhi High Court in Delhi Cloth & General Mills Co. Ltd v Municipal Corporation of Delhi [ILR (1975) II Delhi 174] noticed this feature : "35...The words employed - might and ought - are cumulative; they are not in the alternative. It is a well-established rule that any plea which if taken would have been inconsistent with or destructive of the title in the earlier suit is not a matter which ought to be r....
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....ly because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time..." In Greenhalgh v Mallard [(1947) 2 All ER 255], Lord Justice Somervell, speaking for the Court of Appeal, held : "...I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them". In Johnson v Gore Wood & Co (a firm) [[2001] 2 WLR 72], Lord Bingham while adverting to the dictum in Henderson, noted that the underlying public interest in res judicata (....
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....ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice." Lord Millett held thus: "...It is one thing to refuse to allow a party to relitigate a question which has already been decided; it is quite another to deny him the opportunity of litigating for the first time a question which has not previously been adjudicated upon. This latter (though not the former) is prima facie a denial of the citizen's right of access to the court conferred by the common law and guaranteed by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4th. November 1950). While, therefore, the doctrine of res judicata in all its branches may properly be regarded as a rule of substantive law, applicable in all save exceptional circumstances, the doctrine now under consideration can be no more than a procedural rule based on the need to protect the process of the Court from abuse and the defendant from oppression..." 31 Mr Giri ur....
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.... two principles of res judicata and constructive res judicata seek to achieve the common objective of assuring finality to litigation. Justice P N Shinghal observed: "3. The principle of estoppel per rem judicatam is a rule of evidence. As has been stated in Marginson v. Blackburn Borough Council [(1939) 2 KB 426 at p. 437], it may be said to be "the broader rule of evidence which prohibits the reassertion of a cause of action". This doctrine is based on two theories: (i) the finality and conclusiveness of judicial decisions for the final termination of disputes in the general interest of the community as a matter of public policy, and (ii) the interest of the individual that he should be protected from multiplication of litigation. It therefore serves not only a public but also a private purpose by obstructing the reopening of matters which have once been adjudicated upon. It is thus not permissible to obtain a second judgment for the same civil relief on the same cause of action, for otherwise the spirit of contentiousness may give rise to conflicting judgments of equal authority, lead to multiplicity of actions and bring the administration of justice into disrepute. It ....
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....itimate purview of the original action both in respect of the matters of claim and defence..." [Id at page 112] (emphasis supplied) 34 In determining as to whether the bar of constructive res judicata stands attracted, it is necessary to advert to the earlier application which was filed by the appellants in the execution proceedings. The appellants styled the application as one under Order XXI Rule 99 of the CPC but that, in our view, is not determinative of the true nature of the application. Order XXI Rule 97 provides as follows: "97. Resistance or obstruction to possession of immovable property.-(1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. [(2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.]" Order XXI Rule 99 provides thus: "[99. Dispossession by decree-holder or purchaser.-(1) W....
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....verboard without being considered on merits and such obstructionist would be condemned totally unheard. Such an order of the executing court, therefore, would fail also on the ground of non-compliance with basic principles of natural justice. On the contrary the statutory scheme envisaged by Order 21, Rule 97 CPC as discussed earlier clearly guards against such a pitfall and provides a statutory remedy both to the decree-holder as well as to the obstructionist to have their respective say in the matter and to get proper adjudication before the executing court and it is that adjudication which subject to the hierarchy of appeals would remain binding between the parties to such proceedings and separate suit would be barred with a view to seeing that multiplicity of proceedings and parallel proceedings are avoided and the gamut laid down by Order 21, Rules 97 to 103 would remain a complete code and the sole remedy for the parties concerned to have their grievances once and for all finally resolved in execution proceedings themselves." [Id at page 702] 36 Under Order XXI Rule 1012^[1], all questions including questions relating to right, title and interest in the property arising be....
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.... of the execution proceedings. The appellants in fact set up such a claim. They sought a declaration of their entitlement to remain in possession in the character of lessees. Under Order XXI Rule 97, they were entitled to set up an independent claim even prior to their dispossession. Under Order XXI Rule 101, all questions have to be adjudicated upon by the court dealing with the application and not by a separate suit. Upon the determination of the questions referred to in Rule 101, Order XXI Rule 98 empowers the court to issue necessary orders. The consequence of the adjudication is a decree under Rule 103. 40 The claim which the appellants have now sought to assert for compensation under Section 4(1) of the Act of 1958 is intrinsically related to the claim which they asserted in the earlier round of proceedings to remain in possession. Indeed as we have seen, the appellants seek to resist the execution of the decree on the ground that they are entitled to continue in possession until their claim for compensation is determined upon adjudication and paid. Such a claim falls within the purview of Explanation IV to Section 11 of the CPC. Such a claim could certainly have been made....