Holding

The decision in Civil Appeal No. 4-A of 1956 does not operate as res judicata because the validity of the gift deed was not directly and substantially in issue in that proceeding.

Summary

Mohan (appellant) claimed title to a property he had purchased from Bhiwa, who had earlier gifted the same land to the respondents. The respondents filed suit for declaration of title and possession. The trial court allowed attachment of the property, but the appellant challenged this in a separate suit (No. 42-A of 1952) and later appealed the decree in Civil Appeal No. 4-A of 1956. The appellant argued that the earlier appellate judgment barred the present suit by res judicata. The Supreme Court held that the earlier appeal dealt only with the question of attachment, not the validity of the gift deed, which was the substantive issue in the present suit; therefore, the earlier judgment does not operate as res judicata. The Court dismissed the appeal and ordered the appellant to hand over vacant possession within three months, failing which mesne profits may be claimed.

Issues considered

The applicability of the doctrine of res judicata to the present suit concerning the validity of the gift deed.
Whether the earlier appellate judgment (Civil Appeal No. 4-A of 1956) decided the issue of attachment only, thereby leaving the validity of the gift deed open.

Legislation cited

Code of Civil Procedure, 1908s. 11, s. Order 21 Rule 58, s. Order 21 Rule 63, s. Order 38 Rule 5
Code of Criminal Procedure, 1973s. 245

Subjects

Res judicataAttachment before judgmentGift deed validityCivil Procedure CodeVacant possessionMesne profits

Judgment

A MOHAN
~ ~

v.
SMT. ANAND! AND ORS.

MARCH 12, 1996

B [N.P. SINGH AND K. VENKATASWAMI, JJ.)

Civil Procedure code, 1908-Section 11-Res judicata,-Jn earlier
proceeding the real issue was whether suit property be attached or not-fn -,
subsequent proceeding question was whether the gift-deed was valid and bind-
c ing-Validity of the gift-deed was not directly and substantially in issue in
earlier proceeding-Held, earlier finding will not operate as res judicata in the
subsequent proceeding.

B and his wife the original owners of the property, gave away the
property by way of gift-deed to the respondents. Thereafter, B sold the
D property to the appellant. As the appellant claimed the title, the respon-
dents filed a suit for declaration of their title and for possession of the suit
property.
.-
The appellant, alongwith three other co-plaintiffs filed a civil suit
(No. 47-B of 1951) for recovery of Rs. 506, i.e. of sale-proceeds, against B
E
with an application for attachment before judgment of the suit property.
The trial court initially allowed the application, but after hearing the
parties raised the attachment. The appellant and his co-plaintiffs chal-
lenged this order by filing an independent civil suit vide suit No. 42-A of
1952. Meanwhile, suit No. 47-B of 1951 was decreed against B. Against this .. r
F order, B moved an appeal, but only against the appellant, though there
were three other co-plaintiffs. The appeal was allowed with the remark that
the documents on the basis of which the suit was filed was obtained by
fraud. Consequently, the appellant's right to attach the property in execu-
tion of decree passed in civil suit No. 47-B of 1951 was completely extin-
guished and accordingly the civil suit No. 42·A for attachment was also
G
dismissed. .....,
The appellant by substituting himself in the p)ace of the three other
co-plaintiffs, in favour of whom the decree passed in suit No. 47-B of 1951
still stood intact continued the proceeding in civil suit No. 42-A of 1952 by
H preferring an appeal against the decree, in civil appeal No. 4-A of 1956.
286
MOHANv. ANAND! [K VENKATASWAMI, J.] 1fl7

The attachment of the suit property was allowed. A
The appellant's contention was that the judgment in civil appeal
operates as res judicata in the present case. The trial court did not accept
this contention. The first appellate court and then the High Court upheld
the trial court's view. Aggrieved thereby, the appellant had preferred this
appeal. B
Dismissing this appeal, the Court

HELD : 1. The High Court was right in concluding that the real issue
I' . in the suit No. 42-A of 1952 was as to whether the suit property could be
attached or not. The validity of the gift deed was not directly and substan- C
tially in issue, which was to be decided in the present suit. So the decision
in Civil Appeal No. 4-A of 1956 will not operate as res judicata.
[290-G-H; 291-A; 292-C]
2. The appellant should hand over the vacant possession of the suit
lands within three months. Ir he fails to do so, the respondents will be D
entitled to execute the decree including for the mesne profits. [292-F]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1994 of
i987.

From the Judgment and Order d~ted 16/22.8.85 of the Bombay High E
Court in S.A. No. 275 of 1977.

V .A. Bob de and A.K. Sanghi for the Appellant.

S.V. Tambwekar (NP) for the Respondents.
F
The Judgment of the Court was delivered by

K. VENKATASWAMI, J. The only question that was argued in this
Appeal by learned Senior Counsel for the appellants Shri V.A. Bobde was
whether the present suit out of which this Civil Appeal arises was hit by the
principles of Res Judicata. We may at once point out that on this issue the G
trial cour~ the first appellate court and the High Court have concurrently
found that the suit was not hit by the principle of Res Judicata. Nonetheless,
learned Senior Counsel strenuously argued the matter to persuade us to hold
that the present suit was barred by the principle of Res Judicata.

Before we go into the details of the matter, we would like to point H
288 SUPREME COURT REPORTS (1996] 3 S.C.R.

A oul that this case on an earlier round of litigation came up before this Court
in Civil Appeal No. 473 of 1966 when this Court by judgment dated 3.3.1971
remanded the case to the trial court to consider and decide the issue
relating to Res Judicata. The trial court considered and decided the issue
after remand in the negative. The first appellate court and the High Court
concurred with the view taken by the trial court. Aggrieved thereby, the
B
appellant has preferred this Appeal to the Supreme Court.

The issue of Res Judicata. relates to the legality, validity and binding
nature of a gift deed dated 2.5.1951 executed by one Bhiwa (father of the
respondents) in favour of the respondents herein. 'i
c
The relevant and brief circumstances under which the present Ap-
peal came to be filed may now be noted :

Bhiwa was the original owner of the suit property. He was the father
D of the respondents herein. As a result of compromise between the said
Bhiwa and his wife Mendri in Civil Appeal No. 21Nl942, the latter got
1/4th share of the suit property. Under two gift deeds, she had given away ; ,
that property in favour of her two daughters. viz., respondents 1 and 2. The
said Bhiwa by a gift deed dated 2.5.51 registered on 23.8.51 gave the
balance of the suit property to the respondents herein. The said Bhiwa had
E also sold the suit property to the appellant herein by way of sale deed dated
13.5.51. As the appellant claimed title to the suit property on the basis of
the said sale deed dated 13.5.51, the respondents were obliged to file the
present suit (No. 46N1951) for declaration of their title to the entire suit
property and recovery of prossession. The trial court by its first judgment
p held that the gift deed executed by Bhiwa was fraudulant and consequently
not binding on the appellant herein. However, the trial court granted
decree in favour of the respondents so far as 1/4th share given to respon-
dents 1 and 2 by their mother was concerned. The respondents filed appeal
against the judgment of the trial court in not granting full relief and the
appellant filed cross-objections to the extent he failed in the suit. The lower
G appellate court dismissed the appeal filed by the respondents herein and
allowed the cross-objections of the appellant. In the result, the suit filed by
the respondents in its entirety stood dismissed by the appellate court. The
appellate court while dismissing the suit found that the gift deed dated
2.5.51 was fraudulent and ante-dated. It further held that the suit itself was
H barred by the principle of Res Judicata. Aggrieved by the judgment and
MOHANv. ANAND! [K. VENKATASWAMI, J.] 289

decree of the lower appellate court, the respondents preferred second A
appeal to the High Court of Bombay (Nagpur Bench). The learned Single
Judge of the High Court set aside the judgment and decree passed by the
appellate court dismissing the suit filed by the respondents and remitted
the matter to the trial court for fresh disposal in the light of the observa-
tions made by him. The learned Judge in the course of the judgment found B
that the courts below went wrong in entertaining the plea regarding
fraudulent nature of the gift deed dated 25.5.51 as well as the ante-dating
of the same. Consequently findings on those aspects were set aside. How-
ever, as the plea of Res Judicata was taken for the first time in the first
appellate court, the High Court remitted the matter to the trial court to go
into the question of Res 1udicata after allowing the parties to amend the C
• pleadings. The High Court made it clear that the parties will not be
permitted to amend the pleadings regarding fraud, collusion and ante-
dating in respect of the gift deed dated 2.5.51. Aggrieved by the judgment
of the High Court, the appellant preferred civil appeal to this Court being
C.A. No. 473/66. That Civil Appeal was disposed of by judgment dated D
3.7.71. This Court confirmed the findings and conclusions of the High
Court and consequently dismissed the appeal. This is how the matter went
to the trial court once over for adjudication on the issue relating to Res
Judicata. As noticed earlier after remand all the three courts have concur-
rently held that the plea of Res Judicata is not available to the appellant
herein. E
Let us now give the facts in brief relevant for considering the issue
of Res Judicata.

The appellant along with three others (co-plaintiffs) filed Civil Suit
No. 47B of 1951 against Bhiwa for recovery of a sum of Rs. 506 on F
23.8.1951. Simultaneously, an application for attachment before judgment
under Order 38 rule 5 was also made in that suit. The trial court initially
allowed the application for attachment before judgment of the property
dealt with in the gift deed mentioned above. Aggrieved by that, the respon-
dents herein preferred an application under Order 21 Rule 58 to raise the G
attachment before judgment and the trial court after hearing the parties
raised the attachment by an order dated 28.9.1951.

While the matter stood at that stage and the suit was pending, the
appellant along with three others filed an independent civil suit No. 42A
of 1952 under Order 21 Rule 63 C.P.C. (before the C.P.C. was amended H
290 SUPREME COURT REPORTS (19%] 3 S.C.R.

A by 1976 Act) challenging the order of the Civil Court dated 28.9.1951
raising the attachment at the instance of the respondents herein in Civil
Suit No. 47-B of 1951. That suit viz., 47-B of 1951 was decreed on 30th
September, 1952 against Bhiwa. The said Bhiwa preferred an appeal
against the appellant Mohan alone though there were three other co-
B plaintiffs. That Appeal was numbered as C.A. No. 64-B of 1952. The
learned Additional District Judge, Bhandara while allowing the appeal by
order dated 27.2.1953 found that the document on the basis of which the
appellant and the three other co-plaintiffs filed civil suit No. 47-B/1951 was
obtained by fraud. The appellant who was respondent in the said Appeal
did not challenge that appellate orJer and thus allowed that to become
C final. It must be noted that in the light of the above said appellate order
whatever rights or title the appellant had to attach the property in execu-
tion of the decree passed in Civil Suit No. 47-B of 1951 stood completely
extinguished. In other words, the appellant on his own had no right to
continue the proceedings in Civil Suit No. 42-A of 1952 which was filed
D under Order 21 Rule 63 and was dismissed by the trial court. In order to
get over that difficulty it appears the appellant purchased the decree which
stood in tact in favour of his three co-plaintiffs and got himself substituted
in their place in the decree passed in Civil Suit No. 47-B of 1951 and on
that basis he continued the proceedings in Civil Suit No. 42-A of 1952 by
preferring an appeal against that decree in Civil Appeal No. 4-A of 1956.
E It must be noted that his continuance to file and proceed in Civil Appeal
No. 4-A of 1956 was not in his own right but as an assignee or transferee
of the rights of his co-plaintiffs as noted above. In this appeal, 4-A of 1956,
a finding was given to the effect that the appellant was entitled to attach
4.83 acres of land in Khasra Nos. 472/54 and 485/29 (properties dealt with
F in gift deed referred to above).

It is the contention of the learned counsel for the appellant that the
judgment rendered in Civil Appeal No. 4-A of 1956 operates as as Res
Judicata in the present suit.

G The High Court after thoroughly examining the pleadings observed
as follows :

"I have gone through the copy of the plaint in Civil Suit No.
42-A of 1952. In my view the real issue in this suit was as to whether
H the land admeasuring 4.83 acres within Khasra Nos. 472/54 and
MOHANv. ANANDI [K. VENKATASWAMl,J.] 291

485/29 could be attached or not ? In my view, the validity of the A
". __..,
Gift Deed dated 2.5.51 (Exb.P-3) was not directly and substantially
in issue (emphasis supplied). The emphasis of Mohan in his ap-
plication for attachment before judgment as well as in the plaint
in Civil Suit No. 42-A of 1952 was on the ground that it was Bhiwa
who was throughout in possession of Khasra Nos. 472/54 and
485/29. Mohan has also referred to the dispute between Bhiwa and
B
Mendri and asserted that Mendri never got possession of the land
in dispute and it was only Bhiwa who was throughout in possession
I' of the same. He also referred to the proceedings under Section
245 of the Code of Criminal Procedure between Bhiwa and Mendri
which ended in favour of Bhiwa on 3.21948. In my view, all these c
narrations are only to emphasize that Bhiwa was in possession of
the suit property throughout. The question of possession and the
question of title are two different things (emphasis supplied). Man
may be in possession of a property and yet he may not have any
title to that. The sum and substance of the case of Mohan was that

..
).. since Bhiwa was throughout in possession of the suit land, the same
was liable for attachment in execution of the decree against Bhiwa.
This will also be clear from para 8 of the plaint in Civil Suit No.
D

42-A of 1952 which reads thus :

"The suit to cancel the order dated 28.9.1951 which is filed E
herewith. The Plaintiff will file other documents on the first
date. 11

'f We entirely agree with the above well-reasoned conclusion of the
~ High Court.
F
Moreover, the learned counsel for the appellant placed heavy
reliance on an observation in the appellate judgment in Civil Appeal No.
4-A of 1956 which reads as follows :

·"The only point to be decided is whether 4.83 acres belong to
-,,,,..., Bhiwa and not to the defendant. None of the defendants clainl title G
on the basis of the gift deed dated 2.5.1951. These facts clearly
show that the gift deed is fictitious. It must have been executed for
· defrauding the plaintiffs' claim."

If we read the last sentence in the above extract in isolation that H
292 SUPREME COURT REPORTS [1996) 3 S.C.R.

A might support the contention of the learned counsel for the appellant.
However, the mnclusion of the Appellate Judge in paragraph 14 which is
the relevant part in the judgment cannot be ignored. That part reads as
follows:

"14. The plaintiffs are not entitled to the declaration claimed
B by them in the last para of the plaint as their suit is under Order
21 Rule 63. I, however, think that in the ends of justice, it should
be declared that the above land is liable to attachment and sale in
execution of the decree in Civil Suit Nu. 47-B of 1951.' (Emphasis
supplied)
c If this part of the judgment is read along with para 7 extracted above,
we cannot find fault with the conclusion reached by the High Court,
namely, that in the present suit the decision in Civil Appeal No. 4-A of
1956 will not operate as Res Judicata.

D In view of the above discussion and in the light of the narration of
facts, we conclude that no interference is called for in this Appeal. How-
ever, we feel from the conduct of the parties that there may not be an end
to the litigation which started in the year 1951 and came to this Court on
an earlier occasion. In the best interest of both parties and to do complete
justice and in order to put an end to this litigation between the parties,
E while dismissing the Appeal we make the following order :

The appellant shall hand over vacant possession of the suit lands to
the respondents herein within three months from this date and if the
appellant hands over peacefully vacant possession to the respondents
within the above stipulated period of three months, he. will not be liable
F for mesne profits. If he fails to do. so, the respondents will be entitled to
execute the decree including for the mesne profits. There shall be no order
as to costs.

B.K.S. Appeal dismissed.