Holding

Order 2 Rule 2 does not bar the second suit as it is based on a different cause of action, and the earlier tenancy finding cannot be invoked as res judicata because the issue was not raised in the subsequent suit.

Summary

The plaintiff Deva Ram sued Ishwar Chand for Rs 6,300 as sale price of a land, but the trial court held the document was only an agreement for sale and that the defendants were tenants, dismissing the suit. The plaintiff then filed a second suit for possession of the same land; the trial court dismissed it as barred by Order 2 Rule 2 of the CPC, but the district judge reversed and decreed possession to the plaintiff, a decision upheld by the High Court. The appellants challenged whether Order 2 Rule 2 barred the second suit, whether the tenancy finding from the first suit could be invoked as res judicata, and whether an appeal lies against mere findings. The Supreme Court held that the second suit arose from a different cause of action, so Order 2 Rule 2 did not apply, and the earlier tenancy finding could not be raised as res judicata because the issue was not pleaded in the second suit; also, an appeal does not lie against mere findings. Consequently, the appeal was partly allowed, modifying the decree to partition the land and granting the appellants protected tenancy over ten bighas, with no order as to costs.

Issues considered

Whether Order 2 Rule 2 of the CPC bars a subsequent suit for possession when the earlier suit was for recovery of sale price.
Whether the finding of tenancy in the earlier suit can be invoked as res judicata in the later suit.
Whether an appeal lies against mere adverse findings under Sections 96, 100, 104 of the CPC.

Legislation cited

Code of Civil Procedure, 1908s. Order 2 Rule 2, s. Order 43 Rule 1, s. Section 100, s. Section 104, s. Section 11, s. Section 96
Himachal Pradesh Tenancy and Land Reforms Acts. Section 91

Subjects

Order 2 Rule 2Res judicataCivil Procedure CodeAppealSale deedPossessionTenancyAdverse possessionHimachal Pradesh Tenancy and Land Reforms ActPartitionProtected tenant

Judgment

DEVA RAM AND ANR. A
v.
ISHWAR CHAND AND ANR.

OCTOBER 16, 1995

[KULDIP SINGH AND S. SAGHIR AHMAD, JJ.] B

Civil Procedure Code, 1908-0rder 2, Rule 2--Suit to include the whole
claim--Unity of all claims based on same cause of action in one suiHf
subsequent suit based on a different cause of action-Rule will not operate
as a bar. C
Explanation I to VIII, Section 11----Res judicata-Rule of-.
Applicability-Basic requirement for.

Sections 96 and JOO-Appeal-Adverse finding recorded against a party
in whose favour suit or appeal is ultimately decided-He has no right of D
appeal against decree to contest any adverse finding against him-Such
adverse finding ca11not operate as res judicata in subsequent suit.

The respondent-Plaintiff filed a snit for recovery of a snm of Rs.
6,300 as sale price for land, against the appellant on the ground that by a E
document the land in question of which he was the owner was transferred
to the appellant which the appellant had promised to pay but they did not
pay the amount and continued to remain in possession which they should
have surrendered for having not paid the stipulated amount. The appellant
contested the suit on the ground inter alia that they were tenants under the
plaintiff and were already in possession; that the document was obtained F
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 had become owner of the land.

The suit was dismissed by the Trial Court with the findings, inter G
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 and that the defendants were tenants of the land in suit under
the plaintiff. Appeal filed by the plaintiff was dismissed with the findings
that the land in question was at no stage sold by the plaintiff - respon-
dents to the appellants and consequently they were not entitled to recover H
369
370 SUPREME COURT REPORTS [1995] SUPP. 4 S.C.R.

A Rs. 6,300 from the appellants as sale price as the document in question
was only an agreement for sale and not a sale deed and that the defendant
had failed to prove themselves to be tenants of the disputed land under
the plaintiff.

The plaintiff, however tiled a new suit for possession against the
B appellants on the basis of the title, pleading inter alia that they were the
owner of the land in question and the defendants, appellants who had
already been held in the earlier suit that they were not the tenants of the
land in suit, were not entitled to retain possession. The Trial Court
dismissed the suit with the finding that the suit was barred by the prin·
c ciples of Order 2 Rule 2 of the Code of the Civil Procedure and was beyond
time. In appeal, the findings recorded by the Trial Court were reversed
and the suit was decreed with the findings that it was not barred by Order
2 Rule 2 nor was it beyond time. The second appeal filed in the High Court
was also dismissed. Hence this appeal.

D The appellants contended that the findings recorded by the District
Judge that the suit of the respondents was not barred by Order 2 Rule 2
was erroneous and the appellants h~ving 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
E District Judge also by the High Court as was done by the Trial Court; 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, bad ultimately decided the appeal in
their favour with the result that they being the successfnl party had no
F occasion to tile the appeal and challenge the findings and therefore, the
findings of the Trial Court could not be treated to have been reversed; that
the original findings recorded by the Trial Court on the status of the
appellants that they were the tenants of the land under the respondents
would operate as res judicata against the respondents who could not be
G granted the relief of possession.

Partly allowing the appeal, this Court

HELD : 1.1. Provisions of Order 2 Rule2 of the Civil Procedure Code
indicate that if a plaintiff is entitled to several reliefs against the defendant
H in respect of the same cause of actions, he cannot split up the claim so as
DEVA RAM v. ISHWARCHAND 371

to omit one part or the claim and sue for the other. Ir the cause or actions A
is the same, the plaintiff has to place all his claims before the Court in one
suit as Order 2 Rule 2 is based <in the cardinal principle that the defendant
should not be vexed twice for the same cause. What the rule, therefore,
requires is the unity of all claims based on the same cause of action in one
suit. It does not contemplate unity or distinct and separate causes of B
action. Ir, therefore, the subsequent suit is based on a different cause of
action, the rule will not operate as a bar. (379-01 376-G, 377-B]

Naba Kumar Hazara & Anr. v. Radhashyam Manish & Ors., AIR
(1931) P.C. 229; Amn Lal Gupta & Ors. v. M1iganka Mohan Sur& Ors., AIR
(1975) SC 207; State of Madhya Pradesh v. State of Maharashtra and Oi:i,, C
AIR (1977) SC 1466; Kewal Singh v. Mt. Lajwanti, AIR (1980) SC 161;
Sidramappa v. Rajashetly and Ors., AIR (1970) SC 1059 and Gurb1Lt Singh
v. Bhura Lal, AIR (1964) SC 1810, relied on.

1.2. In the instant case, the previous suit was filed for recovery or a D
sum of Rs. 6,300 as sale price or the land in suit which was dismissed with
the findings that the document on which the suit was filed was not a sale
deed but was mere agreement for sale and, therefore, the amount in
question could not be recovered as sale price. That document, thus,
constituted the basis of the suit. The subsequent suit was brought by the
respondents for recovery or possession on the ground that they were the E

.. owner .of the land in suit and were consequently entitled to recover its
possession. The cause of action in the subset1uent suit was, therefore,
entirely different. Since the previous suit was for recovery of sale-price, the
respondents could not possibly have claimed the relief of possession on
the basis of title as title in that suit had been pleaded by them to have been F
transferred to the defendants-appellants. The essential re<1uirement for
the applicability or Order 2 Rule 2, namely, the identity of causes of action
in the previous suit and the subsequent suit was not established. Conse·
quently, the District Judge as also the High Court were correct in rejecting
the plea raised by the appellants with regard to Order 2 Rule 2 of the Civil
Procedure Code. [378-C-E] G

2. In the subsequent suit, the appellants in their capacity as defen-
dants did not plead the rule of res judicata. As a matter of fact, they did
not in their written statement even refer to the tindings recorded by the
Trial Court in the previous suit nor did they claim that they were tenants H
372 SUPREME COURT REPORTS (1995) SUPP. 4 S.C.R.

A of the land in suit under the respondents. Their main defence was that they
\l'ere in possession oYer the land in suit since Samvat 2005 and had,
therefore, acquire.d title by adverse possession. They also pleaded that the
suit was barred by time and ll'as, in any case, not maintainable in Yiew :..1
the provisions contained in Order 2 Rule 2 of the Civil Procedu.re Code.
The appellants, thus raised an altogether.new defence and did not plead
B that they were tenant~ u_nder the respondents. Consequently, an issue.
whether the appellants were tenants of the land in dispute was not framed
and, therefore, there was no occasion to refer to the findings in the
previous suit. [379·C-D]

c In the previous suit, which was instituted by the respondents, an
issue, namely, issued No. 5 was framed on the status or th'e appellants as
to whether they were the tenants of the land in suit under the respondents
but in _the subsequent suit this issue was not raised as. the appellants who
were the defendants in the subsequent suit .did not plead that they were
D the tenants under the respondents. What they pleaded was that they were ·
in possession since· a long time namely from Samvat 2005 and had,
. therefore, acquired title by adverse possession. Consequently in the sub-
sequent suit, the issue w·hich was raised and tried in the previous suit \\'3S
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. The instant
E 'suit which was the subsequent suit, was between the same parties ·w110 had
litigated in the previous suit and the subject matter of this suit, namely
the disputed land, was the same as was involved in the previous suit but
the issues and causes of action w·ere different. Consequ.ently; the basic
requirement for the applicability of rule of res judicata was wanting and,
F . therefore, the absence of 11Ieading.s, in the absence of issues and in the
absence of any finding, it was nut open. to the appellant• 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. (380-C-F]
G.
3. An appeal does not lie against mere 'findings" recorded by a Court
unless the findings amount to a ~decree" or "order". \\11ere a suit is
dismissed, the defendant against ll'hom an adverse finding have come to
be recorded on some issue, has no right of appeal and lie cannot question
H those findings before the Appellate Court. (381-C]
DEVA RAM v. ISHWAR CHAND [S. SAGHIRAHMAD,J.J 373

Ganga Bai v. Vinay Kumar & Ors., [1974) 3 SCR 882; Mid11apur A
Zami11dmi Co. ltd. v. Naresh Naraya11 Roy, AIR (1922) PC 24 and Ru11
Bhadur Si11gh v. L11clzokoe1; ILR 11 Cal 301 (PC), relied on.

Patcshwar Din & A11r. v. Maha11t Smj11das, AIR (1938) Oudh 18,
aflirmed.
B
Bansi Lal Ratwa v. Laxmi11araya11, (1969) 2 A.W.R. 246 and A1j1111
Singh & Am: v. Tara Das Ghosh & Anr., AIR (1974) Pat 1, distinguished.

4. The appellants were in possession over the land in suit for a ·
considerably long time and the respondents themselves at one stage had C
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 of Rs. 6,300 to them. It was strange that inspite of the
findings having been recorded by the Trial Court in their favour that they
were the tenants of the land in suit under the respondents, the appellants
did not raise that plea in the subsequent suit filed by the respondents for D
recovery of possession. May be, because the finding \\'as set aside by
appellate Court. The area of the land of suit was 34.9 bighas and the
interest of justice would be met if a compact area of 10 bighas was left with
the appellants and the decree for possession is made executable only in
respect of the remaining area namely an area of 24.9 bighas. The appel- E
!ants shall be treated as Protected Tenants in respect of ten bighas of land.
The Tehsildar concerned shall partition the land between the parties as
directed. The appellants shall surrender the area falling to the share of
the respondents within one month of the order of Tehsildar. The order of
the Tehsildar shall be final. [382-C-F]
F
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3112 of
1995.

Frua. ~he Judgment and Order dated 8.7.94 of the Himachal Pradesh
High Court in R.S.A. No. 210 of 1986. G

V.C. Mahajan, Gaurav Jain and Mrs. Abha Jain for the Appellants.

P.N. Nag and R.K. Singh for the Respondents.

· The .I udgment of the Courl was delivered by H
374 SUPREME COURT REPORTS [1995) SUPP. 4 S.C.R.

A S. SAGHIR AHMAD, J. The. legal proceedings for land comprising
khata khatauni No. 45/63. Khasra No. 348 (Area 34.9 bighas} situate in
Village Chuting, Distt. Kinnaur in the Slate of Himachal Pradesh was
initiated by the appellants (defendants) before the Compensation Officer,
Pooh, for certain relief but when their application seems to have been
contested by respondents (plaintiffs), it was withdrawn on August 24, 1971.
B
Thereafter, the present respondent's father Shri Padam Ram, who is since
dead and is represented by the respondent, came forward with a suit for
recovery of a sum of Rs. 6,300 as sale price for the aforesaid land against
the present appellants on the ground that by document dated September
1, 1976 (referred to as 2nd September, 1976 at some places in the record),
c the land in question of which he was the owner was transferred to the
appellant which the appellants 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 stipu-
lated amount.
D The suit Wds contested by the appellants on the grounds inter a/ia
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
E 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
F under the plaintiff since samval 2005 as alleged'!"

The suit was dismissed by the Trial Court (Senior Sub-Judge, Kin-
naur} by judgment and order dated January 15, 1981 with the findings, i/lter
a/ia, that the agreement was without consideration and was hit by the
G provisions of section 91 of the Himachal Pradesh Tenancy and Land
Reforms Act. It also recorded a finding on Issue No. 5 that the defendants
were tenants of the land in suit under the plaintiff since Samvat 2005.

The Judgment of the Trial Court was upheld by the learned Addi-
tional District Judge, Shimla in an appeal filed by the plaintiff which was
H dismissed with the findings that the land in question was at no stage sold
DEVA RAM v. ISHWAR CHAND [S. SAGHIR AHMAD, J.) 375

hy the plaintiffs-respondents to the present appellants and consequently A
the plaintiffs were not entitled to recover Rs. 6,300 from the "appellants as
sale price as the document in que~tion was only an agreement for sale and
not a sale deed. The lower appellate court also specifically reversed the
finding of the Trial Court on Issue No. 5 and held that the defendants had
failed to prove themselves to be tenants of the disputed land under the
B
plaintiff. Those legal proceedings terminated at that stage.

The plaintiff, however, initiated new proceedings by filing Suit No.
91/1/1982 for possession against the present appellants on the basis of the
title, pleading inter alia that they were the owners of the land in question
and the defendants, namely, the present appellants who had already been C
held in the earlier suit that they were not the tenants of the land in suit,
were not entitled to retain possession.

This suit was resisted by the appellants on the ground that the Suit
was barred by Order II Rule 2 of the Code of Civil Procedure and that it
was barred by time as they were in possessing over the land in question D
since samvat 2005 and had become owners of the land in suit by adverse
possession.

The Trial Court, namely, Senior Sub-Judge, Kinnaur at Kalpa, dis-
missed the suit by judgment and order dated April 21, 1984 with the finding E
that the suit was barred by the principles of Order II rule 2 and was beyond
time. In appeal, decided by the Dist!. Judge, Shimla, on March 31, 1986,
the findings recorded by the Trial Court were reversed and the suit was
decreed with the findings that it was not barred by Order 2 Rule 2 of the
Civil Procedure Code nor was it beyond time.
F
The appellants then filed a second appeal in the High Court of
Himachal Pradesh which by its judgment dated July 8, 1994 dismissed the
appeal and that is how the matter is before us now.

Learned counsel for the appellants has contended that the findings G
recorded by the District Judge that the suit of the respondents was not
barred by Order 2 Rule 2 of the Civil Procedure Code was erroneous and
the appellants having already been held to be tenants under the respon-
dents 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 H
376 SUPREME COURT REPORTS [1995) SUPP.45.C.R.

A contended that the findings recorded by the Trial Court on the status of
the appellanls in the previous suit that they \Vere tenants of the land in suit
should still be treated lo hold the field notwithstanding its reversal hy 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 lo file the appeal and challenge the findings. In this
B 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 :
c "R.2. Suit to include the whole claim.

(i) 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
D the suit within the jurisdiction of any Court.

Relinquishment of part of claim.

(2) Where a plaintiff omits to sue in respect of, or intentionally
relinquishes, any portion of his claim, he shall not afterwards sue
E in respect of the portion so omitted or relinquished.

Omission to sue for one of several reliefs.

(3) a person entitled to more than one relief in respect of the
same cau:-.e of act ion n1ay sue for al1 or any of such reliefs, but if
F he omits, except with the leave of the Court, to sue for all such
reliefs, he shall not afterwards sue for any reliefs so omitted."

A bare perusal of the above provisions would indicate that if a
plaintiff is entitled to several reliefs against the defendant.in respect of the
G same cause of action, he cannot split up the claim so as to omit one part
of the claim and sue for the other. If the cause of action is the same, the
plaintiff has to place all his claims before the court in one suit as Order 2
Rule 2 is based on the cardinal principle that the defendant should not be
vexed twice for the same cause.

H In Naba Kumar Hazara andAnr. v. Radhashyam Manish & 01s., AIR.
DEVA RAl\1 v. ISHWARCHAND [S. SAGHIR AHMAD,.I.) 377 ·

( l931) P.C. 229, il was laid down that the plaintiff cannot be permitted to A
<lraw the <lefen<lant to Cl)urt t\vice for the sa111e cause by splitting up the
clain1 and suing, in the first inst£111ce, in respect of a part of clain1 only.

Whal the rule, therefore, requires is the unity of all claims based on
the· same cause of action in one suit. It does not conte1nplate unity of
distinct and separate causes of action. If, therefore, the subsequent suit is B
based on a different cause of action, the rule will not operate as a bar. (See
Ant11 Lal Gupta v. !vbiganka Mohan Sur & 01s., AIR 1975 SC 207; State of
Madhya Pradesh v. State of Maharashtra & 01s., AIR (1977) S.C. 1466;
Kewal Singh v. Mt. Lajwanti, AIR (1980) SC 161).

In Sidramappa v. Rajashetty & 01,·., AIR (1970) S.C. 1059, it was laid
c
down lhat if the cause of action on the basis of which the previous suit was
brought, does not form the foundation of the subsequent suit and in the
earlier suit the plaintiff could not have claimed the relief which he sought
in the subsequent suit, the latter namely, the subsequent suit, will not be
barred by the rule contained in Order II Rule 2, CPC. In Gurbux Singh v. D
Bhura Lal, A.LR. (1964) S.C. 1810, it was observed :

"In order that a pica of a bar under 0.2 R.2(3), Civil Procedure
Code should succeed the defendant who raises the pica must make
out (l) that the second suit was in respect of the same cause of
E
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 lo estab- F
lish 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."
G
In view of the above, \VhC1t is to be seen in the instant case is \Vhether
the cause of action on the basis of \vhich the previous suit was filed, is
identical to the cause of action on \vhich the subsequent suit giving rise to
the present appeal, was filed. If lhe identity of causes of action is estab-
lished, the rule would immediately become applicable and it will have to H
378 SUPREME COURT REPORTS [1995] SUPP. 4 S.C.R.

A be held that since the relief claimed in the subsequent suit was omitted to
be claimed iri the earlier suit, without the leave of the court in which the
previous suit was originally liled, the subsequent suit for possession is liable
to be dismissed as the appellants, being the defendants in both the suits,
cannot be vexed twice by two separate suits in respect of the same cause
of action.
B
We have already noticed in the earlier part of the judgment that the
previous suit was filed for recovery of a sum of Rs. 6300 as sale-price of
the land in suit which was dismissed with the finding that the document on
which the suit was filed was not a sale deed but was a mere agreement for
C sale and, therefore, the amount in question could not be recovered as
sale-price. That document, thus, constituted the basis of the suit.

The subsequent suit was brought by the respondents for recovery of
possession on the ground that they were the owners of the land in suit and
D were consequently entitled to recover its possession. The cause of action
in the subsequent suit was, therefore, entirely different. Since the previous
suit was for recovery of sale-price, the respondents could not possibly have
claimed the relief of possession on the basis of title as title in that suit had
been pleaded by them to have been transferred to the defendants (appel-
lants). The essential requirement for the applicability of Order 2 Rule 2,
E namely, the identity of causes of action in the previous suit and the
subsequent suit was not established. Consequently, the District Judge as
also the High Court were correct in rejecting the plea raised by the
appellants with regard to Order 2 Rule 2 of the Civil Procedure Code.

F Learned counsel for the appellants next contended that the finding
recorded by the Trial Court in the previous suit on issue No. 5 that the
appellants were the tenants of the land in suit under the respondents since
Samvat 2005 should be treated to be still available to them and on that
basis they can legally plead that the suit of the respondents for possession
of the land in suit was liable to be dismissed. It is contended that the finding
G on issue No. 5 was reversed by the lower appellate court in an appeal which
was ultimately decided in their favour and, therefore, it was not possible
for them to challenge the findings of the lower appellate court in any higher
forum for the simple reason that an appeal under Section 96, or, for t_hat
matter, under section 100 of the Civil Procedure Code, lies only against a
H decree and not against a finding. In this situation, it is contended, the
DEVA RAM v. ISHWAR CHAND [S. SAGHIR AHMAD, J.] 379

appellate judgment insofar as it relates to the finding on Issue No. 5, is A
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 judicata against the respondents who cannot be granted the
relief of possession.
B
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 respon- C
dents. 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 case, not maintainable in view of the provisions contained in Order 2
Rule 2 of the Civil Procedure Code. The appellants, thus, raised an
altogether new defence and did not plead that they were tenants under the D
respondents. Consequently, an issue whether the appellants were tenant of
the land in dispute was not framed and, therefore, there was no occasion
to refer to the findings recorded in the previous suit.

Rule of res judicata is contained in section 11 of the Civil Procedure E
Code. Bereft of all its Explanations, namely, Explanations I to VIII, section
11 is quoted below :

"11. Res judicata.

No Court shall try any suit or issue in which the matter directly F
and substantially in issue has been directly and substantially in issue
in a former suit between the same parties, or between parties under
whom they or any of them claim litigating under the same title, in
a Court competent to try and such subsequent suit or the suit in
which such issue has been subsequently raised, and has been heard G
and finally decided by such Court."

"Res judicata Pro Veritate Accipture 11 is the fu11 maxin1 which has over
1
1
the years, shrunk to mere !Res Judicata".

Section 11 contains the rule of conclusiveness of the judgment which H
380 SUPK1:1v!E COURT REPORTS [1995] SUPP. 4 S.C.R.

A is based partly on the maxin1 of Ruman Jurisprudence "Jntcrc5t rcipublicae
ut sit finis litium" (it concerns the State that there be an end to law suits)
11
and partly on lhe maxim Nemo dcbct bis vcxari pro una at eadem causa 1
'

(no man should be vexed twice over for the same cause). The section does
not affect the jurisdiction or the Court but operates as a bar to the trial of
the suit or issue, if the matter in the suit was directly and substantially in
B
issue (and finally decided) in the previous suit between the same parties
litigating under the same title in a court, competent to try the subsequent
suit in which such issue has been raised.

In the previous suit, which was instituted by the respondents, an
c issue, namely, issue No. 5 was framed on the status of the appellant as to
whether they were the tenants of the land in suit under the respondents
but in the subsequent suit this issue was not raised as the appellants who
were the defendants in the subsequent suits did not plead that they were
the tenants under the respondents. What they pleaded was that they were
in possession since a long time namely from Samvat 2005 and had, there-
D
fore, 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 bct\veen the san1e parties
E 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
F
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
G finding recorded by the Court against a party in whose favour the suit or
the appeal is ultimately decided.

It is provided in section 96 of the C.P.C. that an appeal shall lie from
every decree passed by any Court exercising original jurisdiction to the
H Court authorised to hear appeal from the decision or such Court. So also,
DEVA RAM v. ISHWAR CHAND [S. SAGHIR AHMAD, J.] 381

Section 100 provides that an appeal shall lie to the High Court from every A
decree passed in appeal. Thus sine qua non in both the provisions is the
"decree" and unless the decree is passed , an appeal would not lie under
Section 96 nor would it lie under section 100 of the Civil Procedure Code.
Similarly, an appeal lies against an norder'1 under section 104 read with
Order 43 Rule 1 of the Civil Procedure Code where the "orders" against
B
which appeal would lie have been enumerated. Unless there is an "order"
as defined in section 2(14) and unless that "order" falls within the list of
"orders" indicated in Order 43, an appeal would not lie.
.,i Thus, an appeal docs not lie against mere "findings" recorded by a
Court unless the findings amount to a 11 decreen or 11 ordern. Where a suit,· is c
dismissed, the defendant against whom an adverse finding might have come
to be recorded on some issue, has no right of appeal and he cannot
question those findings before the appellate Court. (See Ganga Bai v. Vinay
Kumar & Ors., [1974] 3 SCR 882.

In Midnapur Zamindari Co. Ltd. v. Naresh Narayan Roy, A.LR. D
(1922) P.C. 241, it was observed as under :

"Their Lordships do not consider this will be found an actual plea
of res judicata, for the defendants, having succeeded on the other
plea had not occasion to go further as to the finding against them: E
but it is the finding of a Court which was dealing with facts nearer
of their ken than the facts are to the Board now, and it certainly
creates a paramount duty on the appellant to displace the finding,
a duty which they have now been able to perform."

Similar view was also expressed in an -earlier decision in Run Bahadur F
Singh v. Luchokoer, (1885) !LR 11 CAL. 301 (P.C.).

The Oudh Chief Court in Pateshwar Din & Anr. v. Mahant Sarjudas
A.LR. (1938) Oudh 18 held that where a decree in previous suit is wholly
in favour of a person and gives him all the reliefs sought for by him, he has G
no right of appeal against the decree so as to enable him to contest any
adverse finding against hin1 in such suit. Hence, such adverse finding
cannot operate as res judicata as against him in a subsequent suit.

The High Court of Andhra Pradesh in Bansi Lal Ratwa v. Lax-
minarayan & Anr., (1969) 2 Andhra Weekly Reporter 246 and the Full H
382 SUPREME COURT REPORTS [1995] SUPP. 4 S.C.R.

A Bench of the High Court of Patna inA1j1111 Singh & Anr. v. Tara Das G/ws/1
& Anr. A.LR. 1974 Patna l, have taken the view that an appeal would not
lie against mere adverse finding unless such finding would constitute res
judicata in subsequent proc~edings. We are, however, nol 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
B
written statement, the appellant cannot be permitted to raise the plea here.

In view of what we have held above, the points conva>Scd before us
are decided against the appellants.

We, however, cannot overlook the fact that the appellants are in
c possession over the land in suit for a considerably long time anq 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 of Rs. 6,300 to them.
It is strange that inspite of the findings having been recorded by the Trial
D Court in their favour that they were the tenants of the land in suit under
the respondents, the appellants did not raise that plea in the subsequent
suit filed by the respondents for recovery of possession. May be, because
the finding was set aside by appellate Court. Why this was not done is not
within our jurisdiction to enquire. All that we can say is that the area of
E the land of the suit is 34.9 bighas and the interest of justice would be met
if a compact area of 10 bighas is left with the appellants and the decree
for possession is made executable only in respect of the remaining area
namely an area of 24.9 bighas. The appellants shall be treated as Protected
Tenants in respect of ten bighas of land. The Tehsildar concerned shall
partition the land between the parties as directed by us. The appellants
F shall surrender the area falling to the share of the respondents within one
month of the order of Tehsildar. The order of the Tehsildar shall be final.
The judgment of the Courts below including that of the High Court shall
stand modified to that extent.

G The appeal is partly allowed to the extent indicated above but
without any order as lo costs.

R.A. Appeal partly allowed.