MD. NOOMAN & ORS.versusMD. JABED ALAM & ORS.

                    [2010] 11 S.C.R. 729


                   MD. NOOMAN & ORS.                              A
                             v.
                MD. JABED ALAM & ORS.
              (Civil Appeal No. 2579 of 2004)
                  SEPTEMBER 22, 2010
                                                                  8
          [AFTAB ALAM AND R.M. LODHA, JJ.]

      Suit - Eviction suit- Issue regarding title between parties
- Recording of finding in favour of plaintiff~ Subsequent suit
for declaration of title and recovery of possession between the C
same parties - Effect of earlier suit on the subsequent suit -
Held: Finding recorded in favour of the plaintiff in the earlier
suit for eviction would operate as res judicata in the
subsequent suit for declaration of title and recovery of
possession between the parties - Question of title was directly D
and substantially in issue between the parties in the earlier
suit - Res judicata.

      The plaintiff, mother of· the respondents, filed a suit
for eviction against the defendant, father of the
                                                                  E
appellants. The issues were framed regarding the
plaintiff's claim to the. title over the suit property and the
relationship of landlord and tenant between the parties.
The trial court upheld the plaintiff's claim to the title but
did not grant decree of eviction since the relationship of
landlord and tenant was not established between the               F
parties. The appellate court affirmed the order of the trial
court. Thereafter, the plaintiff filed another suit against the
defendant seeking declaration of title over the property
and recovery of its possession from the defendant. The
trial court decreed the suit. The defendant filed an appeal       G
and the same was allowed. Thereafter, the plaintiff died
and her legal representatives-respondent filed the second
appeal. The High Court set aside the judgment and the
                             729                                  H
    730      SUPREME COURT REPORTS                [2010] 11 S.C.R.


A   decree passed by the first appellate court and restored
    the judgment and the decree of the trial court. Therefore,
    the appellants filed the instant appeal.

          Dismissing the appeal, the Court
B        HELD: The issue of title was expressly raised by the
    parties in the earlier eviction suit and it was expressly
    decided by the eviction court. The question of title was
    directly and substantially in issue between the parties in
  . the earlier suit for eviction. Hence, the High Court was
C right in holding that the finding recorded in favour of the
    plaintiff in the earlier suit for eviction would operate as
    res judicata in the subsequent suit for declaration of title
    and recovery of possession between the parties. [Para
    17] [7 40-D-F]
D
         Pardip Singh vs. Ram Sundar Singh AIR (36) 1949
    Patna 510 - approved.

      Shamim Akhtar v. Iqbal Ahmad and Anr. (2000) 8 SCC
  123;Sajjadanashin Sayed Md.B.E.Edr.by L.Rs.(D) vs, Musa
E DadabhaiUmmer and Ors. (2000) 3 SCC 350 - referred to.

                         Case Law Reference:
     (2000) s sec 123              Referred to.          Para 14
F    (2000)3 sec 350               Referred to.          Para 15
     AIR (36) 1949 Patna 510       approved.             Para 15

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    2579 of 2004.
G
        From the Judgment & Order dated 24.05.2002 of the Hig~,.
    Court of Judicature at Patna in Appeal from appellate· decree '..
    No. 236 of 1987.


H
MD. NOOMAN & ORS. v. MD. JABED ALAM & ORS. 731


    H.L. Agarwal, Gaurav Agrawal, Dr. Kailash Chand for the           A
Appellates.

     Seema Kashyap, S.K. Sinha for the Respondents.

     The Judgment of the Court was delivered by
                                                                      B
      AFTAB ALAM, J. 1. A finding on the question of title
recorded in a suit for eviction would how far be binding in a
subsequent suit for declaration of title and recovery of
possession between the same parties? This is the question
that arises for consideration in this appeal. The answer to the       c
question would depend on, in what manner the question of title
was raised by the parties and how it was dealt with by the court
in the eviction proceedings. Ordinarily, it is true, in a suit for
eviction even if the court goes into the question of title, it
examines the issue in an ancillary manner and in such cases           D
(which constitute a very large majority) any observation or
finding on the question of title would certainly not be binding in
any subsequent suit on the dispute of title. But there may be
exceptions to the general rule and as we shall find presently,
the case in hand seems to fall in that exceptional category of
                                                                      E
very limited number of cases.

     2. Amina Khatoon, the mother of respondent nos.1-4, (who
were substituted in her place and brought on record after her
death) instituted a suit for eviction (Title Suit No.36 of 1973) in
the Court of Second Munsif, Arrah, against Md. Lukrnan, the           F
father of appellant nos.1-6 (who were similarly substituted in
his place and brought on record after his death). According to
the plaintiff Amina Khatoon, the suit property originally belonged
to her mother-in-law, Sulakshana. Sulakshana had two other
sons, Md. Lukman (the original defendant) and Md. Jan, apart          G
frorn Amina's husband, Mahmood Hassan. Amina further
claimed that Sulakshana sold the suit house to her through a
registered sale deed dated August 13, 1957. Following the
purchase of the suit house, she moved the Block Development
Officer (BOO) and the municipality for mutation of her name in        H
                                                  I
                                                  I
    732     SUPREME COURT REPORTS                 '(2010] 11 S.C.R.

A   respect of the suit house in the revenue and municipal records.
    The defendant Md. Lukman, filed an objection before the BOO,
    but his objection was disallowed and her name was entered in
    the revenue and municipal records. Later on, the municipality
    filed a suit against her for arrears of tax whereupon all the
B   outstanding dues of tax were paid by her. It was further the case
    of Amina, that she had let out the suit house to the defendant
    about 4 or 5 years prior to the filing of the suit.on a monthly
    rent of Rs.10.00 (rupees ten only). The defendant did not pay
    the rent from September, 1971 to February 1~. 1973. She then
c   sent a registered notice to him under section 106 of the
    Transfer of Property Act, 1882 through her lawyer determining
    the defendant's tenancy and asking him to vacate the house
    by March 31, 1973. The defendant did not vacate the house
    forcing her to go to the court.      ·

D        3. The defendant in his written statement, apart from the
    formal objections to the maintainability of the suit, denied that
    Sulakshana executed any sale deed with respect to the suit
    house in favour of the plaintiff. He described the sale deed,
    relied upon by the plaintiff as the basis of her title, as a tamed
    and fabricated document. In this connection, the defendant
    stated that Sulakshana had an attack of paralysis before August
    13, 1957 when the sale was said to have been executed by
    her. She had lost her senses and she was not in a position to
    execute any sale deed, No consideration was paid by the
    plaintiff to Sulakshana and the title to the house never passed
    to her. The defendant set up a rival claim of title over the suit
    house. He stated that Sulakshana had transferred the suit
    house in his favour in 1950, .by Hiba (oral gift) and since then
    he was coming in possession of the suit property. Originally, it
    was parti (vacant) land. He submitted a plan in the municipality
    for construction of the house on it and constructed the house
    after the plan was sanctioned. He was living in th.e house
    constructed by him over the land which was given to him by his
    mother by Hiba. He denied any relationship of landlord and
    tenant with the plaintiff and also denied to have takerlthe suit
MD. NOOMAN & ORS. v. MD. JABED ALAM & ORS. 733
             [AFTAB ALAM, J.]
house from the plaintiff on a monthly rent of Rs.10.00 (rupees            A
ten only). He never paid any rent to the plaintiff, nor was any
rent due against him.

      4. On the basis of the pleadings of the parties, the trial
court framed seven issues, of which issue nos.3 & 4 relating              8
to· the plaintiff's claim of title over the suit property and issue
no.5 about the relationship of landlord and tenanf between the
parties are relevant for this appeal. Those three issues are as
under:

     "3. Has the plaintiff got title to the suit land?                    c
     4. Is the sale deed genuine, valid and for consideration?

     5. Is there any relationship of landlord and tenant between
     the Parties?"
      ..
                                                                          D
     5. In support of the rival claims of title over the suit property,
both the plaintiff and the defendant led their respective
evidences, both oral and documentary. The defendant also
examined the third brother, Md. Jan from his side as DW11.
On a consideration of the evidences adduced before it, the trial          E
court upheld the plaintiff's claim of title to the property arriving
at the following finding:

     "In view of the discussion made above I hold that the sale
     deed (Ext.4) is genuine and that story set up by the
                                                                          F
     defendant that an oral hiba was made by Sulachna to him
     has not been proved. The plaintiff has got Title to the suit
     land and the sale deed is genuine valid and for
     consideration."

      6. It then took up issue nos.5 and 6 (about the plaintjff's         G
entitlement to a decree of eviction) together and came to hold
and find that the relationship of landlord and tenant between the
parties had not been proved. In light of its finding on issue no.5,
the court further observed that in case the question of title is
raised by the defendant and if it is found that there is no contract      H
    734       SUPREME COURT REPORTS                   [2010] 11 S.C.R.


A   of tenancy, the proper course would be to dismiss the suit and
    not to convert it into a declaratory or possessory suit which is
    of altogether a different nature. The court further pointed out that
    the suit before it was neither for declaration of title nor the
    plaintiff had paid ad valorem court fee. The plaintiff was,
B   therefore, not entitled to a decree of eviction since the
    relationship of landlord and tenant was not established between
    the parties. It, accordingly, dismissed the suit by judgment and
    order dated December 23, 1974.

C       7. The plaintiff took the matter in appeal, (Title Appeal
  No.12 of 1975) which too was dismissed by the Second
  Additional District Judge, Arrah, by judgment and order dated
  February 19, 1975. From the judgment of the first appellate
  court, it appears that before it the main focus was on the issue
  of relationship of landlord and tenant between the parties. The
D trial court found that the suit property was vacant land and not
  a house (the case of the plaintiff was that the suit property was
  a piece of land 3 kathas and 5 dhurs in area with a fallen down
  house). It also noted that on behalf of the respondent no
  argument was advanced on the invalidity of the sale deed and
E the controversy was mainly about the relationship of landlord
  and tenant between the parties. On this issue, the appellate
  court came to the same finding as the trial court and dismissed
  the plaintiff's appeal observing as follows:

F         "10. It is quite clear from the above enunciated principle
          that in order to get a decree in such a suit the plaintiff must
          not come to the Court with a false story. In the present case,
          it is quite obvious the plaintiff has come with a false case
          that she let out a house on the suit land to the deft (sic
          defendant) on a rent of Rs.10/- per month. If there is no
G
          relationship of landlord and tenant between the parties the
          plaintiff should have prayed for declaration her title and
          recovery of possession after paying advalorem Court fee
          on the current market value of the suit property. By filing a
          suit for eviction of the defendant and paying small Court
H
MD. NOOMAN & ORS. v. MD. JABED ALAM & ORS. 735
             [AFTAB ALAM, J.]
     fee on twelve month alleged rent of the house, the plaintiff         A
     has adopted a tricky way of getting .her title declared and
     possession of the suit house recovered after paying very
     low amount of the court fee."

      8. The plaintiff did not take the matter any further but filed
                                                                          B
another suit (Title Suit No.16/82 of 1978-79) against Md.
 Lukman seeking declaration of title over the property and
 recovery of its possession from the defendant. In this suit, her
claim oftitle over the suit property was exactly the same as in
 the previous suit. The defendant too, apart from raising the
objections based on limitation and res judicata and similar               C
other formal pleas mainly stuck to the same story as in the
previous case. According to the defendant, the sale deed relied
upon by the plaintiff was not a genuine document for
consideration and it was not executed by Sulakshana, who was
the mother of the defendant. It was stated on behalf of the               D
defendant that Sulakshana died in 1957. In the beginning of that
year she suffered from fever for about a month and remained
confined to bed and thereafter she suffered an attack of
paralysis. She lost all power of understanding and continued
in that state till her death in August 1957. The defendant                E
specifically pleaded that on August 13, 1957 when the disputed
sale deed was shown to have been executed, she had no
 power of understanding. It was further stated on his behalf that
 the plaintiffs husband was a clever litigant and he manoeuvred
to fabricate the sale deed by setting up some other woman as              F
Sulakshana. It was also stated that if there was in existence any
sale deed purportedly executed by Sulakshana, it must have
been manufactured in collusion with the scribe, the attesting
witnesses and the registrar and it would not confer any right,
title or interest in the suit property on the plaintiff. It was further   G
the case of the defendant that the disputed sale deed was never
acted upon and the plaintiff never came in actual possession
of the suit property on this basis. The defendant also denied
the case of the plaintiff that she had inducted him as a tenant
in the suit premises on a monthly rental of Rs.10.00 (rupees              H
    736       SUPREME COURT REPORTS                    [2010] 11 S.C.R.


A   ten only) or as a licensee, as totally false and concocted. The
    defendant claimed that his mother Sulakshana had given him
    the suit property in the year 1950 by Hiba (oral gift) and put him
    in actual physical possession of the suit premises and since
    then he was coming in its possession. He constructed a
B   boundary wall around the land and a house consisting of five
    rooms, etc. It was lastly claimed that the defendant was coming
    and continuing in possession to the knowledge of everyone,
    including the plaintiff and, thus, the defendant had, in any event,
    acquired title by adverse possession.
c      9. It is, thus, to be seen that in the second suit too both
  parties went to the court with the same stories as in the
  previous suit, though, it is true that this time each side led some
  additional evidence in support of its case, for example, the
  plaintiff relied upon and produced a copy of the judgment in the
D earlier suit in which her claim of title over the suit property was
  upheld.

          10. The trial court framed a number of issues, of which
    issue nos. Ill, IV, V & VI are relevant for this appeal and are as
E   follows:

          "(Ill) Has the plaintiff got title over the suit property?

         (IV) Is there any relationship of landlord and tenant between
    the plaintiff and the defendant?
F
          (V) Has the plaintiff acquired title by adverse possession?

          (VI) Is the plaintiff entitled to recovery of possession? "

  The trial court considered issue nos. Ill, IV & V together and
G came to find and hold that the plaintiff had succeeded in
  proving her title whereas the defendant had failed to prove his
  adverse possession. Issue nos. Ill & V were therefore decided
  in the plaintiff's favour while issue no. IV was decided against
  her. On the basis of i.ts findings, the trial court held that the
H
MD. NOOMAN & ORS. v. MD. JABED ALAM & ORS. 737
             [AFTAB ALAM, J.]
plaintiff had valid cause of action and it, accordingly, decreed      A
the suit by judgment and order dated February 28, 1981.

     11. Against the judgment and order passed by the trial
court the defendant preferred an appeal (Title Appeal No.33 of
1981). The first appellate court (the eighth Additional District      8
Judge, Arrah), on a reappraisal of the evidence produced by
the parties, came to find and hold that the plaintiff had failed to
prove that Sulakshana had put her left thumb impression on the
sale deed (Ext.3) after understanding its contents and she had,
thus, failed to prove her title to the suit premises on the basis     C
of the sale deed. The appellate court, accordingly, allowed the
appeal and by judgment and order dated May 21, 1987 set
aside the judgment and decree passed by the trial court and
dismissed the plaintiff's suit.

    12. The original plaintiff was dead by this time and her heirs    D
and legal representatives, the present respondents, took the
matter in second appeal (Appeal from Appellate Decree
No.236 of 1987) to the High Court. In the High Court, the
second appeal was heard on the substantial question of law
framed as under:                                                      E

     "... whether the judgment and decree regarding title passed
     in Title Suit No.36 of 1973 (Ext.15) shall operate as res
    judicata between the parties on the question of title."

     13. The High Court by judgment and order dated May 24,           F
2002 answered the question in the affirmative, in favour of the
appellants (respondents herein), allowed the appeal, set aside
the judgment and order passed by the appeal court below and
restored the judgment and decree of the trial court. The High
Court noted that the earlier suit (for eviction) and the later suit   G
for declaration of title and recovery of possession were between
the same parties and were contested on exactly the same
claims raised by the two sides. The plaintiff on each occasion
was claiming title to the suit premises on the basis of a sale
deed executed by Sulakshana in her favour in the year 1950.           H
    738       SUPREME COURT REPORTS                   [2010] 11 S.C.R.


A The defendant on each occasion alleged that the sale deed was
  sham, fake and fabricated and set up a rival claim of title on
  the plea that his mother Sulakshana had made an oral gift of
  the suit premises in his favour in the year 1950 and since then
  he was coming in possession over it. The premises, when it
B was given to him in gift, was a vacant land over which he had
  constructed a house after obtaining sanction from the
  municipality. The High Court, therefore, observed as under:

          "9 ... The facts of the earlier Title Suit No.36 of 1973, which
          was between the same parties and present Title Suit No.16
c         of 1978 also between the same parties, show that the plea
          taken by both the parties regarding title in both the Title
          Suits are same.

           10. In the facts and circumstances of the case, the
D         judgment and decree regarding title passed in Title Suit
          No.36 of 1973 (Ext.15) shall operate as res judicata
          between the parties on the question of title."

           14. Mr. H.L. Agrawal, learned senior advocate, appearing
E   for the appellant contended that the High Court had seriously
    erred in holding that the finding in the earlier suit of eviction
    would operate as res judicata in the subsequent suit for
    declaration of title and recovery of possession. Mr. Agrawal
    contended that a court dealing with an eviction suit was a
    creature of the Rent Act and was a court of limited jurisdiction.
F   It had no authority or jurisdiction to decide disputes of title and
    hence, any finding recorded by it on the larger issue of title could
    not be binding on a court under the Code of Civil Procedure
    adjudicating upon a dispute of title between the two sides. He
    further submitted that there may be instances where in a suit
G   for eviction the tenant might deny the title of the person seeking
    his ejectment and in those cases the rent court may incidentally
    go into the question of title in order to decide on the primary
    issue of eviction. But its findings on the issue of title would only
    be incidental and never binding in a proper suit for declaration
H   of title and recovery of possession. In support of the submission
 MD. NOOMAN & ORS. v. MD. JABED· ALAM & ORS. 739
              [AFTAB ALAM, J.]
he relied upon a decision of this Court in Shamim Akhtar v.                A
Iqbal Ahmad & Anr., (2000) 8 SCC 123, in which it is said that
in an eviction suit under the Rent Act, the question of title can
be considered by the court as an incidental question and the
final determination of title must be left to the decision of the
competent court. The decision in Shamim Akhtar arose from                  B
U.P. Urban Buildings (Regulation of Letting, Rent and Eviction)
Act, 1972 and the Provincial Small Cause Courts Act, 1887
and it was on a totally different set of facts. The observation of
the court relied upon by Mr. Agrawal was of course stating the
general rule and no more than that. The decision in Shamim                 C
Akhtar in no way helps the case of the appellants in the present
appeal.

      15. The counsel for the respondents on the other hand
relied upon a decision of this court in Sajjadanashin Sayed
Md. B.E.Edr.by LRs. (D) vs. Musa Dadabhai Ummer and Ors.,                  D
(2000) 3 SCC 350. The decision in this case dealt with the
question when a matter can be said to be directly and
substantially in issue and when it is only collaterally and
incidentally in issue. The decision in Sajjadanashin does seem
to help the case of the respondents. But we may state here that            E
Mr. Agrawal with great fairness brought to our notice a decision
of the Patna High Court 1 in Pardip Singh vs. Ram Sundar
Singh, AIR (36) 1949 Patna 510, though it is clearly against
him. It is an old decision in which the division bench of the High
Court placed reliance on two earlier decisions of the Privy                F
Council. In Pardip Singh Meredith J., speaking for the division
bench of the court observed as follows:

      "The decision in a rent suit is not res judicata on the
      question of title unless the question of title had to be
      decided, was expressly raised, and was expressly decided             G
      between the parties and in each case it is necessary to
      examine carefully the decision in the rent suit before any

1.   To which both, Mr. Agrawal and the two of us have been very closely
     associated at some time.                                              H
     740        SUPREME COURT REPORTS                   [201 OJ 11 S.C.R.


A            opinion can be formed as to whether it operates as res
            judicata on the question of title or not. Ordinarily the
            decision would be res judicata only with regard to the
            existence of the relationship of landlord and tenant. The
            difference in the two classes of cases is very well illustrated
B           in two Privy Council decisions, namely, Run Bahadoor
             Singh v. Mt. Lucho Kaer, 12 I.A. 23: (11 Cal. 301 P .C.),
            where it was held that the decision was not res judicata
            as the question of title had been gone into only incidentally
            and collaterally, and. Radhamadhub Holdar v. Manohar
            Mookerji, 15 I.A. 97: (15 Cal. 756 P.C.), where the
c           question of title was directly decided in a rent suit, and the
            decision was held to be res judicata."

          16. We respectfully concur with the view expressed in the
     decision in Pardip Singh.
D
        17. We have carefully examined the pleadings of the
  parties in the two suits and the evidences led by them in
  support of their respective claims regarding title in the two suits.
  And, we are satisfied that the issue of title was expressly raised
E by the parties in the earlier eviction suit and it was expressly
  decided by the eviction court. The question of title was directly
  and substantially in issue between the parties in the earlier suit
  for eviction. Hence, the High Court was right in holding that the
  finding recorded in favour of the plaintiff in the earlier suit for
F eviction would operate as res judicata in the subsequent suit
  for declaration of title and recovery of possession between the
  parties.

       18. We, thus, find no merit in the appeal. It is dismissed,
  but in the facts and circumstances of the case there will be no
G order as to costs.

    . N.J                                            Appeal dismissed .