Holding

The Supreme Court held that the plaintiffs are the rightful owners of the A Schedule property, res judicata and estoppel do not apply, the auction sale conveyed only the debtor’s share, and no adverse possession was established.

Summary

The case concerned a 2.72‑acre property originally owned by two brothers, which was partitioned in 1912 giving each brother a 50% share. The plaintiffs, descendants of one brother, claim ownership of the 1.36‑acre "A Schedule" share, while the defendant’s father purchased the other 1.36‑acre share in a 1933 court auction. The defendant argued that the auction conveyed the entire property, that earlier suits (against a temple and a school) barred the present suit by res judicata and estoppel, and that he had acquired title by adverse possession. The Supreme Court held that res judicata does not apply between co‑defendants because the requisite conflict of interest, necessity, and final decision were absent; the admission by the plaintiff’s father did not create estoppel; an auction purchaser acquires only the seller’s interest and is subject to caveat emptor; and the defendant failed to prove exclusive possession for adverse possession. Consequently, the plaintiffs were entitled to a declaration of title and injunction over the A Schedule property, and the appeal was dismissed.

Issues considered

The applicability of Section 11 CPC res judicata between co‑defendants in the earlier temple and school suits
Whether the plaintiff’s father’s admission creates an estoppel in favour of the defendant
Whether the 1933 court auction conveyed the entire property or only the judgment debtor’s share
The relevance of the doctrine of caveat emptor to the auction purchaser
Whether the defendant acquired title by adverse possession

Legislation cited

Code of Civil Procedure, 1908s. 11

Subjects

property partitionres judicataco-defendantsestoppeladverse possessioncaveat emptordeclaration of titleinjunctionCivil Procedure Code

Judgment

1092 [2018] REPORTS
SUPREME COURT 11 S.C.R. 1092 [2018] 11 S.C.R.

A GOVINDAMMAL (DEAD) BY LRS. AND ORS.
v.
VAIDIYANATHAN AND ORS.
(Civil Appeal No. 5276 of 2008)
OCTOBER 23, 2018
B
[N. V. RAMANA AND MOHAN M. SHANTANAGOUDAR, JJ.]
Suit:
Suit for declaration of title and permanent injunction for
restraining the defendants from entering ‘A Schedule’ property
(which is 50% of ‘B Schedule’ property) – In the alternative partition
C
of half share in ‘B Schedule’ property was sought – ‘B Schedule’
property was owned by two brothers – Partition of ‘B Schedule’
property done in the year 1912 – As per partition, 50% of the ‘B
Schedule’ property i.e. ‘A Schedule’ property came to the share of
predecessors of the plaintiffs – The other 50% share went to the
D other brother, which was later sold in Court auction to predecessor-
in-interest of the defendants – Plea of defendants that their
predecessor-in-interest had purchased the entire ‘B Schedule’
property in the Court auction; and that defendants’ title was already
declared in two suits filed by a temple and a school against the
defendants (wherein plaintiffs were also made party as defendants)
E
and in the cross-suit filed by the defendants against the School –
Trial Court decreed the suit and granted the alternative relief of
partition – In appeal, order of trial court was reversed by Single
Judge of High Court – Division Bench of High Court decreed the
suit – On appeal, held: It is not disputed that partition of ‘B Schedule’
F property took place through a registered deed between families of
two brothers – 50% share was inherited by plaintiffs – The 50%
share of other brother was put in court auction which was purchased
by father of defendant – What could be sold in auction was only
50% of ‘B Schedule’ property and not the share of plaintiffs i.e. ‘A
Schedule’ property – The suits by and against the School and by
G
the temple did not decide the title of defendants qua the plaintiffs
as the question of inter se title between them was neither in issue
nor was required to be decided in those suits – Documents on record
do not show exclusive possession of either of the parties – Plaintiffs
have satisfactorily proved that they are the owners of the ‘A Schedule’
H property.
1092
GOVINDAMMAL (DEAD) BY LRS. AND ORS. v. 1093
VAIDIYANATHAN AND ORS.

Code of Civil Procedure, 1908: A
s.11 – Res judicata – Applicability of – Between co-
defendants – Held: For applying the principle of res judicata between
co-defendants, there must be conflict of interest between the
defendants; it must be necessary to decide the conflict in order to
give the relief to plaintiff; and the question between the defendants B
must have been finally decided – In the facts of the present case,
principle of res judicata is not applicable.
Evidence:
Admission – Evidentiary value – Held: Admission is the best
piece of evidence – However, admission can always be explained, C
unless such admission gives rise to the principle of estoppel –
Estoppel.
Doctrine:
Doctrine of caveat emptor – Applicability of.
Dismissing the appeal, the Court D
HELD: 1.1 It is not in dispute that the entire property of
3.18 acres (now reduced to 2.72 acres) was owned by two brothers
‘P’ and ‘C’. It is also not in dispute that a partition took place
between the families of the two brothers through a registered
partition under which each of them got 50% of the property which
E
ultimately amounted to 1.36 acres each. 50% of the entire
property had fallen to the share of the sons of ‘P’ and the
remaining 50% remained with ‘C’. Plaintiffs have inherited 50%
of the property, i.e., to the extent of 1.36 acres from ‘P’. It seems
‘C’ fell into debt and his property in question was brought to sale
through court auction. Father of the defendant was the purchaser F
in this court auction. Thus, what could be sold in the court auction
was only 50% of 2.72 acres which was held by ‘C’ i.e. 1.36 acres.
The remaining 50% of the property (i.e. ‘A’ Schedule) which
vested with the predecessor of plaintiffs could not be sold in the
court auction. [Para 5] [1101-D-E, F-G; 1102-A-B]
G
1.2 In absence of the judgment passed in suit which
ultimately ended in court sale, it cannot be said as to whether the
entire property was the subject matter of the court sale or not.
Since ‘C’ was the judgment debtor, at the most, only his share in
the property could be sold and it is not open for the purchaser to
H
1094 SUPREME COURT REPORTS [2018] 11 S.C.R.

A contend that he purchased the entire property though only 50%
of the property belonged to the judgment debtor. The purchaser
can not get a higher right, title or interest in the property than
what vested with the seller. Ultimately the purchaser takes the
risk, if he purchases the property which does not belong to the
judgment debtor. The purchaser at an auction sale takes the
B
property subject to all the defects of title, and the doctrine of
caveat emptor (let the purchaser beware) applies to such a
purchaser. Therefore, even assuming that the court auction sale
was held in respect of the entire property, it cannot be said that
such sale was valid to the entire extent. At the most, it can be
C said that it was valid to the extent of the property which was
owned by the judgment debtor i.e. 1.36 out of 2.72 acres. The
remaining 50%, i.e., schedule ‘A’ property was owned by the
predecessor of the plaintiffs. [Para 5] [1102-C-E]
1.3 Present suit is not a mere suit for partition. Primarily
D it is a suit for declaration of the plaintiffs’ title to the suit property,
i.e., ‘A schedule’ property and for permanent injunction restraining
the defendants from entering the possession of ‘A schedule’
property, which is nothing but 50% of the entire ‘B Schedule’
property which fell to the share of predecessor of plaintiffs.
Alternatively, it was prayed by the plaintiffs that if the plaintiffs
E and defendant are found to be in joint possession, they be granted
the relief of partition and separate possession to the plaintiffs’
half share in ‘B schedule’ property. ‘B schedule’ property
measures 2.72 acres in its entirety, whereas ‘A schedule’ property
is 50% of ‘B schedule’ property, measuring 1.36 acres, which
F fell to the share of predecessor of plaintiffs in the partition of
1912. Since the partition had taken place in 1912 and as the
plaintiffs inherited the property from their predecessor, they are
entitled to 50% of the share in ‘B schedule’ property. The Division
Bench has rightly held that the plaintiffs are entitled to ‘A
Schedule’ property, which is the half share allotted to their branch
G in the partition of 1912, out of ‘B Schedule’ property. Thus, the
question of maintainability raised by the defendant fails. [Para 6]
[1102-F-H; 1103-A-B]
1.4 The plaintiffs need not question the auction sale which
was conducted in 1933 inasmuch as, firstly, they are not parties
H to those proceedings including the execution proceedings and
GOVINDAMMAL (DEAD) BY LRS. AND ORS. v. 1095
VAIDIYANATHAN AND ORS.

court auction. Secondly, by virtue of auction sale, the purchaser A
would get only the share vested with ‘C’ inasmuch as he alone
was the judgment debtor. The property which is not owned by
the judgment debtor could not be sold at all and therefore, even
assuming that the sale certificate is wrongly issued in respect of
the entire property, the same does not bind the plaintiffs inasmuch
B
they continued to be the owner of 50% of the whole of the
property. [Para 7] [1103-C-D]
2.1 It is true that under Section 11 of the CPC, when the
matter has been directly or 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, the decree C
in the former suit would operate as res judicata between the
plaintiff and the defendant or as between the co-plaintiffs or co-
defendants. If a plaintiff cannot get his claimed relief without trying
and deciding a case between the co-defendants, the court will try
and decide the case in its entirety including the conflict of interest D
between the co-defendants and the co-defendants will be bound
by the decree. But if the relief given to the plaintiff does not
require or involve a decision of any case between co-defendants,
the co-defendants will not be bound as between each other. [Para
12] [1106-F-H; 1107-A]
E
2.2 The requisite conditions to apply the principle of res
judicata as between co-defendants are that (a) there must be
conflict of interest between the defendants concerned, (b) it must
be necessary to decide this conflict in order to give the plaintiff
the relief he claims and (c) the question between the defendants
must have been finally decided. All the three requisite conditions F
are absent in the present matter. The father of the defendant
were colluding in the suits filed by Temple and School. Both of
them unitedly opposed those suits. In view of the same, the
principles of res judicata would not apply. [Para 9] [1104-C-E]
2.3 In the suit filed by the temple against the father of the G
defendant, the father of the plaintiffs was also arrayed as defendant
No. 2. Even in the suit filed by the school, the defendants therein,
i.e. father of the plaintiffs and father of the defendant jointly pleaded
that the school was not the owner of the property and that the
defendants were the owners. Both the suits filed by the temple H
1096 SUPREME COURT REPORTS [2018] 11 S.C.R.

A and the school came to be dismissed. From the facts and the
pleadings as well as the evidence recorded in the said suits, it is
amply clear that there was no dispute inter se between the
defendants. Since the question of inter se title between the
defendant’s father and the plaintiffs’ father was not in issue and
was also not required to be decided in the disputes then raised,
B
obviously, the doctrine of res judicata cannot be applied between
such co-defendants. [Para 8] [1103-F-H; 1104-B]
Mt. Munni vs. Tirloki Nath AIR 1931 PC 114; Syed
Mohammad Saadat Ali Khan vs. Mirza Wiquar Ali Beg
and others AIR (30) 1943 Privy Council 115; Chandu
C Lal vs. Khalilur Rahaman AIR (37) 1950 Privy Council
17; Mahboob Sahab vs. Syed Ismail and others (1995)
3 SCC 693; Syed. Mohd. Saadat Ali Khan vs. Mirza
Wiquar Ali Beg AIR 1943 PC 115; Shashibushan
Prasad Mishra vs. Babuji Rai AIR 1970 SC 809; Iftikhar
D Ahmed vs. Syed Meharban Ali, (1974) 2 SCC 151 :
[1974] 3 SCR 464 – relied on.
3. It is no doubt true that an admission is the best piece of
evidence. However, an admission can always be explained, unless
such an admission gives rise to the principle of estoppel. The
E principle of estoppel could have arisen if the father of the
defendant had acted to his detriment on the basis of the
representation made by the plaintiffs’ father as the basic
requirement for attracting the principle of estoppel, is that the
person to whom the representation has been made must have
acted on the basis of such representation, and particularly to his
F own detriment. In the present case, the father of the defendant
knew about the correct position on facts and he very well knew
that he was the owner to the extent of 50% of the property only,
and as he did not act to his detriment, the question of estoppel
does not arise. [Para 13] [1107-E-G]
G 4. The Division Bench of High Court has rightly negated
the contention of the defendant relating to adverse possession.
From the evidence on record, the trial court and the Division
Bench of the High Court came to the conclusion that the defendant
had failed to prove that he and his predecessor-in-interest had
H possession over the entire property to the exclusion of the
GOVINDAMMAL (DEAD) BY LRS. AND ORS. v. 1097
VAIDIYANATHAN AND ORS.

plaintiffs and their predecessor. No material is found on record A
which emphatically discloses that the physical delivery of
possession of the property was given to the auction purchaser by
evicting or in exclusion of all the persons including the plaintiffs’
father and the plaintiffs. In the absence of such material, the trial
court and the Division Bench have rightly concluded that there
B
was symbolic delivery of possession in favour of the auction
purchaser. However, the subsequent documents show joint
possession of the plaintiffs and the defendant. Even now the
names of both the parties are found in the revenue records. The
documents do not show exclusive possession of either of the
parties, but would indicate that they are in joint possession. The C
records and certain other material on record would negative the
contention of the defendant relating to adverse possession. [Para
14] [1108-B-F]
Case Law Reference
AIR 1931 PC 114 relied on Para 9 D
AIR (30) 1943 Privy Council 115 relied on Para 10
AIR (37) 1950 Privy Council 17 relied on Para 11
(1995) 3 SCC 693 relied on Para 12
AIR 1943 PC 115 relied on Para 12
E
AIR 1970 SC 809 relied on Para 12
[1974] 3 SCR 464 relied on Para 12
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5276
of 2008
From the Judgment and Order dated 29.01.2007 of the High F
Court of Judicature at Madras in L.P.A. No. 70 of 2002.
Ms. V. Mohana, Sr. Adv., V. Prabhakar, Mrs. Revathy Raghavan,
Ms. Jyoti Prasher, N. J. Ramchandar, R. Reghunath, Sriram P., Sarath
S. Janardanan, Kashvi Dutta, K. M. Vignesh Ram, Vijay Kumar, Advs.
for the appearing parties. G
The Judgment of the Court was delivered by
MOHAN M. SHANTANAGOUDAR, J. 1. The legal
representatives of the original defendant in O.S No.45/85 on the file of
the Subordinate Judge, Cuddalore are the appellants before this Court.
For the sake of convenience, the parties are referred by their status
H
1098 SUPREME COURT REPORTS [2018] 11 S.C.R.

A before the Trial Court.
2. The suit was filed by the respondents herein, seeking a
declaration that ‘A schedule’ property (as described in the plaint) belongs
to them or in the alternative for partition of half share in ‘B schedule’
property (as described in the plaint) of which ‘A schedule’ is a part.
B According to the plaintiffs (respondents herein), the properties originally
belonged to two brothers namely, Pazanivelu Mudaliar and Chokalingam;
Pazanivelu Mudaliar had two sons, namely, Narayanaswamy Mudaliar
and Manickam. Narayanaswamy had a son named Gnanasambandam
Mudaliar. The plaintiffs are the grandsons of Narayanaswamy being the
sons of Gnanasambandam. On 21.7.1912, partition took place between
C the branches of Pazanivelu and Chokalingam, and the same was signed
by Narayanaswamy (since Pazanivelu had expired by then) and
Chokalingam. In the said partition, ‘A schedule’ propertywas allotted to
Narayanaswamy and Manickam (who was then a minor), while the
remaining 50% of the property left in ‘B schedule’ was allotted to
D Chokalingam. It is relevant to note here itself that the suit property totally
measured 3.18 acres at the time of partition in 1912, which subsequently
got reduced to 2.72 acres in view of natural calamities, sale of certain
portions and resettlement etc. Thus, the share of each branch was reduced
to 1.36 acres each. The property consisted of Survey No. 67.
Narayanaswamy and Manickam being the sons of Pazanivelu Mudaliar
E partitioned the property allotted to the branch of their father in such a
manner so as to allot the entire ‘A Schedule’ property to Manickam, on
5.4.1933, as per Exhibit A-39. The said property allotted in favour of
Manickam was sold by him to one Appavu Mudaliar on 11.9.1940 as
per Exhibit A-2. On 26.2.1942, the property purchased by Appavu
F Mudaliarwas in turn sold in favour of Sambandam Mudaliar. On 9.2.1950,
the property purchased by Sambandam Mudaliar was sold to
Narayanaswamy Mudaliar as per Exhibit A-3. After the death of
Narayanaswamy Mudaliar in the year 1965, the plaintiffs being the
grandsons of Narayanaswamy Mudaliar inherited the whole ‘A schedule’
property.
G
Meanwhile, Chokalingam’s half share was sold in a court auction
on 21.12.1933 and was purchased by the original defendant’s father.
There are no records to show that there was delivery of possession
pursuant to the court auction sale; at any rate, the court sale could not
confer more than the right, title and interest of the judgment debtor,
H namely Chokalingam’s half interest, which is 1.36 acres out of 2.72 acres
GOVINDAMMAL (DEAD) BY LRS. v. VAIDIYANATHAN 1099
[MOHAN M. SHANTANAGOUDAR, J.]

recorded in the resettlement. Unfortunately, the entire ‘B Schedule’ A
property which was partitioned in 1912 was never demarcated inasmuch
as the same was always used as a house site. Since the resettlement
proceedings in 1976, this property comprises 3 pattas numbers. The
plaintiffs’ father had also been paying house tax. The defendant had no
right in ‘A schedule’ property. The defendant’s father and consequently
B
the defendant did not have any right over the property in excess of
Chokalingam’s half share, i.e., 1.36 acres. On 5.11.1978, in the partition
in the family of the plaintiffs and their father, the ‘A Schedule’ property
was allotted to Plaintiff No.2 as per Exhibit A-40. Since the defendant
attempted to trespass into the south western portion of the suit property
(which falls under ‘A Schedule’) and prevented the plaintiffs from C
enjoying the same, the suit came to be filed.
The case of the defendant is that his father purchased the entire
extent of Survey Number 67, i.e., 2.72 acres in a court auction (in
execution of the decree in O.S.No. 20 of 1918) on 21.12.1933, which
was confirmed on 29.9.1934, and possession was delivered to him; after D
his father’s death in 1940, the defendant continued to be in possession.
In the year 1975, Shri Puthumariamman Temple, Kurinjipadi filed O.S.
No. 66 of 1975 against the defendant and Gnanasambandam Mudaliar
(the father of the plaintiffs) in respect of the said property. The said suit
came to be dismissed, holding that the temple had no right to the property
and that the defendant and his father were entitled to the same. The E
appeal filed by the temple also came to be dismissed. Thus, the title of
the defendant and his father was upheld in the litigation wherein the
father of the plaintiffs was a co-defendant along with the defendant as
stated above. Subsequently, the SKV High School filed O.S. No. 1289/
1974 for declaration of its title over the property, claiming that it had got F
title over the entire property. The defendant filed O.S. No. 1290/1974
against the SKV High School. The father of the plaintiffs was one of the
defendants in O.S. No.1289/1974 filed by the school whereas he was
not made party by the defendant in O.S. No.1290/1974. After joint trial
in both the suits, the suit filed by the present defendant was decreed
declaring his title over the suit property, and the suit filed by the school G
was dismissed. Such judgment of the Trial Court was confirmed in appeal.
The defendant denied the validity of the subsequent sale deeds dated
11.9.1940 and 9.2.1950 in his written statement. Even the later partition
dated 5.11.1978 was attacked as a fraudulent and collusive transaction.
The defendant claimed to be in exclusive possession of the entire property H
1100 SUPREME COURT REPORTS [2018] 11 S.C.R.

A from the date of the court auction, i.e., from 1933 continuously, and that
he had acquired right by adverse possession. It was also pleaded by the
defendant that the defendant’s title has already been declared twice by
the Civil Court as mentioned supra and therefore, the present suit is
barred by the principles of res judicata. The claim of joint possession
by the plaintiffs was denied by the defendant.
B
3. On a full-fledged trial, the Trial Court decreed the suit and
granted the alternative relief of partition. In the first appeal filed by the
defendant, the learned Single Judge reversed the judgment of the Trial
Court and dismissed the suit. The Letters Patent Appeal filed by the
plaintiffs was allowed by the impugned judgment and consequently the
C suit came to be decreed by the Division Bench of the High Court.
4. Shri V. Prabhakar, appearing on behalf of the appellants/LRs
of the defendant submitted that the suit for partition is not maintainable
inasmuch as even according to the plaintiffs, partition had taken place
way back in the year 1912 between the branches of their ancestor
D Pazanivelu Mudaliar and his brother Chokalingam. The auction sale
conducted by the court in the year 1933 remained unquestioned by the
plaintiffs and their predecessors; since the entire property was sold in
the auction sale, the defendant being the purchaser of the property was
entitled to the entire property. It was submitted that in the earlier litigations
E filed by the temple and the school in respect of the entire property, the
father of the plaintiffs was a co-defendant along with the father of the
defendant and had pleaded or given evidence to the effect that the entire
property was purchased by the father of the defendant by way of court
auction, and that the father of the defendant was in possession as the
owner of the same. Such disputes were decided in favour of the father
F of the defendant, upholding his title, and therefore by operation of the
principles of res judicata as well as estoppel, it could be said that the
defendant and his father had the right to own the property and
consequently, the plaintiffs did not have any right over ‘A Schedule’
property. It was also contended that the defendant and his father had
G remained in uninterrupted possession and had been asserting the right
consistently and openly from 1933 onwards, and therefore it could be
safely said that the defendant had perfected his title by virtue of adverse
possession.
Per contra, Smt. V. Mohana, learned Senior Advocate, appearing
H on behalf of the respondents/plaintiffs submitted that the question of any
GOVINDAMMAL (DEAD) BY LRS. v. VAIDIYANATHAN 1101
[MOHAN M. SHANTANAGOUDAR, J.]

conflict regarding inter se title between the plaintiffs’ father and the A
defendant’s father had not been in issue in any of the earlier litigations
and, therefore, there was no question of attracting the principles of res
judicata with respect to the plaintiffs’ claim. Similarly, the admission of
the plaintiffs’ father regarding the right of the defendant’s father could
not operate as an estoppel as it could not be said that the defendant and
B
his father had acted to the detriment of their interest on the basis of any
admission of the plaintiffs’ father; even otherwise, such admission could
be explained satisfactorily. Since the partition between the branches of
the two brothers Pazanivelu and Chokalingam which occurred in the
year 1912 through a registered partition deed was not in dispute, 50% of
the share vested with the legal heirs of Pazanivelu Mudaliar, i.e., the C
plaintiffs. It was for the defendant to plead and prove that he had
remained in exclusive possession in respect of such 50% of the property
to the exclusion of the plaintiffs, adverse to the interest of the plaintiffs
for the requisite period; otherwise the question of acquiring right by
adverse possession would not arise.
D
5. It is not in dispute that the entire property of 3.18 acres (now
reduced to 2.72 acres) was owned by two brothers, Pazanivelu and
Chokalingam. It is also not in dispute that a partition took place between
the families of the two brothers i.e., Chokalingam and his brother’s son
namely Narayanaswamy Mudaliar on 21.7.1912 (since Pazanivelu had
expired by then) through a registered partition under which each of them E
got 50% of the property which ultimately amounted to 1.36 acres each.
It is needless to observe that the said Narayanaswamy Mudaliar is the
son of Pazanivelu Mudaliar. Subsequently, further partition took place
between the two sons of Pazanivelu namely, Narayanaswamy and
Manickam on 5.4.1933 in respect of aforementioned 1.36 acres, i.e., ‘A’ F
Schedule property allotted to their branch, which was entirely allotted to
Manickam in the partition of 1933. This share was subsequently alienated
by Manickam, and eventually repurchased by his brother
Narayanaswamy. Thus, it is clear that 50% of the entire property had
fallen to the share of the sons of Pazanivelu Mudaliar and the remaining
50% remained with Chokalingam. It is not in dispute that the plaintiffs G
are the grandsons of Narayanaswamy Mudaliar. Thus they have inherited
50% of the property, i.e., to the extent of 1.36 acres. It seems Chokalingam
fell into debt and his property in question was brought to sale through
court auction. The auction was held on 21.12.1933 and Subbaraya
Mudaliar, i.e., father of the defendant was the purchaser in this court H
1102 SUPREME COURT REPORTS [2018] 11 S.C.R.

A auction. Said Subbaraya Mudaliar died in the year 1940 leaving behind
the defendant. Thus, what could be sold in the court auction was only
50% of 2.72 acres which was held by Chokalingam, i.e. 1.36 acres. The
remaining 50% of the property (i.e. ‘A’ Schedule) which vested with
Narayanaswamy and his family could not be sold in the court auction.
The order relating to the confirmation of sale in Execution Proceeding
B
Registration No. 2/33 was produced and marked before the Trial Court,
which contains the schedule of the property. Unfortunately, none of the
parties have produced the judgment passed in O.S. No. 20/1918 which
ultimately ended in court sale in E.P. No.2/33. Thus, this Court is not in
a position to say exactly as to whether the entire property was the subject
C matter of the court sale or not. Be that as it may, since Chokalingam
was the judgment debtor, at most only his share in the property could be
sold and it is not open for the purchaser to contend that he purchased the
entire property though only 50% of the property belonged to the judgment
debtor. The purchaser can not get a higher right, title or interest in the
property than what vested with the seller. Ultimately the purchaser
D
takes the risk, if he purchases the property which does not belong to the
judgment debtor. The purchaser at an auction sale takes the property
subject to all the defects of title, and the doctrine of caveat emptor (let
the purchaser beware) applies to such a purchaser. Therefore, even
assuming that the court auction sale was held in respect of the entire
E property, it cannot be said that such sale was valid to the entire extent.
At most, it can be said that it was valid to the extent of the property
which was owned by the judgment debtor i.e. Mr. Chokalingam, i.e.
1.36 out of 2.72 acres. The remaining 50%, i.e., schedule ‘A’ property
was owned by Narayanaswamy Mudaliar and his legal representatives.
F 6. The suit out of which this appeal arises is not a mere suit for
partition. On the other hand, primarily it is a suit for declaration of the
plaintiffs’ title to the suit property, i.e., ‘A schedule’ property and for
permanent injunction restraining the defendants from entering the
possession of ‘A schedule’ property, which is nothing but 50% of the
entire ‘B Schedule’ property which fell to the share of Narayanaswamy
G Mudaliar. Alternatively, it was prayed by the plaintiffs that if the plaintiffs
and defendant are found to be in joint possession, they be granted the
relief of partition and separate possession to the plaintiffs’ half share in
‘B schedule’ property. It is relevant to note here itself that ‘B schedule’
property measures 2.72 acres in its entirety, whereas ‘A schedule’
H property is 50% of ‘B schedule’ property, measuring 1.36 acres, which
GOVINDAMMAL (DEAD) BY LRS. v. VAIDIYANATHAN 1103
[MOHAN M. SHANTANAGOUDAR, J.]

fell to the share of Narayanaswamy Mudaliar in the partition of 1912. A
Since the partition had taken place in 1912 between Chokalingam and
Narayanswamy Mudaliar (being the son of Pazanivelu), and as the
plaintiffs inherited the property from Narayanaswamy Mudaliar, they
are entitled to 50% of the share in ‘B schedule’ property. The Division
Bench has rightly held that the plaintiffs are entitled to ‘A Schedule’
B
property, which is the half share allotted to their branch in the partition of
1912, out of ‘B Schedule’ property. Thus, the question of maintainability
raised by the defendant fails.
7. The plaintiffs need not question the auction sale which was
conducted in 1933 inasmuch as, firstly, they are not parties to those
proceedings including the execution proceedings and court auction. C
Secondly, by virtue of auction sale, the purchaser would get only the
share vested with Chokalingam inasmuch as Chokalingam alone was
the judgment debtor. The property which is not owned by the judgment
debtor could not be sold at all and therefore, evenassumingthat
thesalecertificate is wrongly issued in respect of the entire property, the D
same does not bind the plaintiffs inasmuch they continued to be the
owner of 50% of the whole of the property.
8. It is no doubt true that in the suit filed by the temple against the
father of the defendant, the father of the plaintiffs was also arrayed as
Defendant No. 2. It is also not in dispute that the father of the plaintiffs E
and the father of the defendant by engaging a common advocate filed a
common written statement pleading that the temple was not the owner
of the property and that Defendant No.1 was the owner of the property.
It is also not in dispute that the father of the plaintiffs admitted in the said
suit that Defendant No.1 in the said suit, namely, the father of the
defendant herein, was the owner of the property. So also, in the suit F
filed by the school, the father of the plaintiffs was also arrayed as one of
the defendants along with the father of the defendant. In the said suit
also, a common written statement was filed. Even in the suit filed by the
school, the defendants therein, i.e., the father of the plaintiffs herein and
father of the defendant herein jointly pleaded that the school was not the G
owner of the property and that the defendants were the owners. Both
the suits filed by the temple and the school came to be dismissed, holding
that the temple as well as the school were not the owners of the property.
From the aforementioned facts and the pleadings as well as the evidence
recorded in the said suits, it is amply clear that there was no dispute
H
1104 SUPREME COURT REPORTS [2018] 11 S.C.R.

A inter se between the defendants. In other words, there was no dispute
whatsoever regarding title between the father of the plaintiffs and the
father of the defendant in those two suits. The main question to be decided
in those suits was whether the third parties who had claimed rights were
entitled the property. Since the question of inter se title between the
defendant’s father and the plaintiffs’ father was not in issue and was
B
also not required to be decided in the disputes then raised, obviously, the
doctrine of res judicata cannot be applied between such co-defendants.
9. However, there exist certain situations in which principles of
res judicata may apply as between co-defendants. This has been
recognized by the English Courts as well as our Courts for more than a
C century. The requisite conditions to apply the principle of resjudicata
as between co-defendants are that (a) there must be conflict of interest
between the defendants concerned, (b) it must be necessary to decide
this conflict in order to give the plaintiff the relief he claims and (c) the
question between the defendants must have been finally decided. All the
D three requisite conditions are absent in the matter on hand. Firstly, there
was no conflict of interest between the defendants in the suits filed by
the temple and the school. Secondly, since there was no conflict, it was
not necessary to decide any conflict between the defendants in those
suits in order to give relief to the temple or the school, which were the
plaintiffs. On the other hand, the father of the plaintiffs and the father of
E the defendant were colluding in those suits filed by Temple and School.
Both of them unitedly opposed those suits. In view of the same, the
principles of res judicata would not apply. The Privy Council in the
case of Mt. Munni vs. Tirloki Nath, AIR 1931 PC 114 has observed
thus:
F “The doctrine of res judicata finds a place in S.11 Civil P.C.,
1908, but it has been held by this Board on many occasions that
the statement of it there is not exhaustive; the latest recognition
of this is to be found in Kalipada De v. Dwijapada Das [AIR
1980 PC 22]. For the general principles upon which the doctrine
G should be applied it is legitimate to refer to decisions in this country:
see Soorjamonee Dayee v. Suddamund Mahapatter [I.A. Sup,
Vol. 212], Krishna Behari Roy v. Banwari Lal Roy [(1874) 1
Cal. 144], Raja Run Bahadur Singh v. Mt. Lachoo Koer [(1885)
11 Cal. 301]. That there may be res judicata as between co-
defendants has been recognized by the English Courts and by a
H long course of Indian decisions. The conditions under which this
GOVINDAMMAL (DEAD) BY LRS. v. VAIDIYANATHAN 1105
[MOHAN M. SHANTANAGOUDAR, J.]

branch of the doctrine should be applied are thus stated by A
Wigram V.C., in Cottingham v. Earl of Shrewsbury [ (1843) 3
Hare 627] at 638:
“If a plaintiff cannot get at his right without trying and deciding
a case between co-defendants, the Court will try and decide
that case, and the co-defendants will be bound, but if the relief B
given to the plaintiff does not require or involve a decision of
any case between co-defendants, the co-defendants will not
be bound as between each other by any proceeding which
may be necessary only to the decree the plaintiff obtains.”
This statement of the law has been accepted and followed in C
many Indian cases: see Ahmad Ali v. Najabat Khan [(1895) 18
All. 65], Ramchandra Narayan v.Narayan Mahadev [(1887) 11
Bom. 216], Magniram v. Mehdi Hossein Khan [(1904) 31 Cal.
95]. It is, in their Lordships’ opinion, in accord with the provisions
of S. 11, Civil P.C., and they adopt it as the correct criterion in
cases where it is sought to apply the rule of res judicata as D
between co-defendants. In such a case therefore three conditions
are requisite: (1) There must be a conflict of interest between
the defendants concerned; (2) it must be necessary to decide
this conflict in order to give the plaintiff the relief he claims; and
(3) the question between the defendants must have been finally E
decided.”
(emphasis supplied)
10. Once again, the very principles were restated in the case of
Syed Mohammad Saadat Ali Khan vs. Mirza Wiquar Ali Beg and
others, AIR (30) 1943 Privy Council 115, in which the following F
observations were made:
“In order that a decision should operate as res judicata between
co-defendants three conditions must exist: (1) There must be a
conflict of interest between those co-defendants; (2) it must be
necessary to decide the conflict in order to give the plaintiff the G
relief he claims; and (3) the question between the co- defendants
must have been finally decided. There can be no doubt that in
the case under consideration the first and third conditions were
fulfilled. Whether the second condition existed is the question to
be answered. The Chief Court held that it did not exist for the
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1106 SUPREME COURT REPORTS [2018] 11 S.C.R.

A reasons appearing in the following extract from their judgment.”
11. Almost the same principles were reiterated in the case of
Chandu Lal vs. Khalilur Rahaman, AIR (37) 1950 Privy Council 17,
in which the following observations were made:
“In Munni Bibi and Another vs. Tirloki Nath, 58 I.A. 158: [AIR
B (18) 1931 PC 114] the conditions for the application of the
doctrine of res judicata as between parties who have been co-
defendants in a previous suit are thus laid down: there must be
(1) a conflict of interest between the co-defendants, (2) the
necessity to decide that conflict in order to give the plaintiff the
C appropriate relief, and (3) a decision of that question between
the co-defendants. It may be added that the doctrine may apply
even though the party, against whom it is sought to enforce it, did
not in the previous suit think fit to enter an appearance and contest
the question. But to this the qualification must be added that, if
such a party is to be bound by a previous judgment, it must be
D proved clearly that he had or must be deemed to have had notice
that the relevant question was in issue and would have to be
decided.”
(emphasis supplied)
In the case of Md. Saadat Ali (supra), though the first and third conditions
E were fulfilled, the second condition was not fulfilled and hence it was
held that the principles of res judicata will not apply, meaning thereby
that all the three conditions should be fulfilled in order to apply the
principles of res judicata.
12. It is true that under Section 11 of the CPC, when the matter
F has been directly or 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, the decree in the former suit would operate
as res judicata between the plaintiff and the defendant or as between
the co-plaintiffs or co-defendants. For instance, if in a suit by P against
G D1 and D2, the matter is directly and substantially in issue between D1
and D2 and adjudication upon that matter was necessary to determine
the suit to grant relief to P, the adjudication would operate as res judicata
in subsequent suits between D1 and D2 in which either of them is plaintiff
or defendant. In other words, if a plaintiff cannot get his claimed relief
without trying and deciding a case between the co-defendants, the court
H will try and decide the case in its entirety including the conflict of interest
GOVINDAMMAL (DEAD) BY LRS. v. VAIDIYANATHAN 1107
[MOHAN M. SHANTANAGOUDAR, J.]

between the co-defendants and the co-defendants will be bound by the A
decree. But if the relief given to the plaintiff does not require or involve
a decision of any case between co-defendants, the co-defendants will
not be bound as between each other. This Court in the case of Mahboob
Sahab vs. Syed Ismail and others, (1995) 3 SCC 693, considering the
applicability of the doctrine of res judicata between co-defendants held
that the following four conditions must be satisfied, namely, B
“(1) there must be a conflict of interest between the defendants
concerned;
(2) it must be necessary to decide the conflict in order to give
the reliefs which the plaintiff claims;
C
(3) the question between the defendants must have been finally
decided; and
(4) the co-defendants were necessary or proper parties in the
former suit.”
To reach the conclusion mentioned above, this Court relied upon
the judgments in the cases of Syed. Mohd. Saadat Ali Khan vs. Mirza D
Wiquar Ali Beg, AIR 1943 PC 115; Shashibushan Prasad Mishra vs.
Babuji Rai, AIR 1970 SC 809 and Iftikhar Ahmed vs. Syed Meharban
Ali, (1974) 2 SCC 151.
13. Coming to the question of estoppel as argued by the defendant’s
counsel based on the admission of the father of the plaintiffs in the E
pleadings and in his deposition regarding the title of the father of the
defendant in the aforementioned earlier litigations, it is no doubt true that
an admission is the best piece of evidence. However, an admission can
always be explained, unless such an admission gives rise to the principle
of estoppel. The principle of estoppel could have arisen if the father of
the defendant had acted to his detriment on the basis of the representation F
made by the plaintiffs’ father as the basic requirement for attracting the
principle of estoppel, is that the person to whom the representation has
been made must have acted on the basis of such representation, and
particularly to his own detriment. In the matter on hand, the father of
the defendant knew about the correct position on facts and he very well G
knew that he was the owner to the extent of 50% of the property only,
and as he did not act to his detriment, the question of estoppel does not
arise. As mentioned supra, it is well settled that in an auction purchase,
the auction purchaser does not acquire any right over the property higher
than that of the judgment debtor. Since the principles of res judicata
between co-defendants are not applicable in this case, and since a mere H
1108 SUPREME COURT REPORTS [2018] 11 S.C.R.

A admission does not operate as an estoppel, such admission does not
create or pass any title in favour of the defendant’s father and
consequently to the defendant. On the other hand, it is apparent that the
defendant’s father had right over only half of the property in question,
which he had purchased.
B 14. The Division Bench has rightly negated the contention of the
defendant relating to adverse possession. From the evidence on record,
the trial Court and the Division Bench of the High Court have come to
the conclusion that the defendant has failed to prove that he and his
predecessor-in-interest had possession over the entire property to the
exclusion of the plaintiffs and their predecessor. No material is found on
C record which emphatically discloses that the physical delivery of
possession of the property was given to the auction purchaser by evicting
or in exclusion of all the persons including the plaintiffs’ father and the
plaintiffs. In the absence of such material, the Trial Court and the Division
Bench have rightly concluded that there was symbolic delivery of
D possession in favour of the auction purchaser. However, the subsequent
documents show joint possession of the plaintiffs and the defendant.
Even now the names of both the parties are found in the revenue records.
The documents do not show exclusive possession of either of the parties,
but would indicate that they are in joint possession. Exhibits A-7, A-8
and A-9 are the pattas which disclose the names of both the parties in
E the revenue records. Even the house tax receipts are in the name of the
plaintiffs’ predecessor. ‘A schedule’ property has already been subjected
to partition inter se among the plaintiffs after the death of Narayanswamy
Mudaliar and the allotment of property in question, i.e. ‘A Schedule’ has
been made in favour of the second plaintiff as per Exhibit A-40. The
F aforementioned records and certain other material on record would
negative the contention of the defendant relating to adverse possession.
The plaintiffs have proved satisfactorily that they are the owners of ‘A
Schedule’ property, i.e., 50% of the property partitioned in 1912, which
had ultimately fallen in the share of Mr. Narayanaswamy (grandfather
of plaintiffs) as mentioned supra.
G
15. In view of the same, we do not find any reason to interfere
with the impugned judgment of the Division Bench of the High Court
passed in L.P.A. No. 70/2002 dated 29.01.2007. The instant appeal
accordingly fails and is hereby dismissed.
Kalpana K. Tripathy Appeal dismissed.
H