RAMESH CHANDRAversusSHIV CHARAN DASS AND ORS.

I
J

•                         RAMESH CHANDRA
                                 v.
                                                                                 A
                     SHIV CHARAN DASS AND ORS.

                             SEPTEMBER 21, 1990

                   [M.H. KANIA AND R.M. SAHA!, JJ.]                              B

           Code of Civil Procedure. 1908: Section //-Res Judicata-Finding
    recorded in appeal in one suit-Whether operates as Res judicata in
    fatter suit.

           The Appellant's father purchased the house of respondent Nos. 1
    and 2 with condition of repurchase by the sellers after five years. He
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    permitted the respondents to remain in possession but got a rent note
    executed by. Respondent No.3, the first cousin of Respondent No.l.
    Aller the expiry of 5 years when the house was not repurchased by the
    respondents, the appellant's father (plaintitl) instituted a suit for
     arrears of rent and ejectment against Respondent Nos. 1, 2 and 3            D
    (Defendant Nos. 2, 3 and 1) claiming that defendant No. 1 was in
     arrears of rent and defendant Nos. 2 and 3 were his sob-tenants. The
    Trial Court decreed the suit for arrears of rent against-defendant No. 1
    but dismissed the snit for ejectment against defendant Nos. 2 and 3
    holding that they were not sub-tenants. Defendant No. 1 filed an
    appeal against the decree for arrears of rent: The Appellate Court           E
    dismissed the appeal with an observation that though the rent note was
    executed by Defendant No. 1, the possession of Detendant Nos. 2 and 3
    was on behalf of Defendant No. 1 since they were ttosely related. Rely-
    ing on these observations the plaintiff filed a second suit against the
    defendants with a change that defendant Nos. 2 and 3 were licensees of
    defendant No.1. The Trial Court decreed the suit for arrears of rent         F
    against defendant No. 1 and for ejectment against defendant Nos. 2 and
    3. Both defendant No. 1 separately and defendant Nos. 2 and 3 jointly
    filed two appeals which were dismissed.

           Separate appeals were filed in the High Court which ·dismissed the
    appeal of defendant No. 1 and allowed the appeal of defendant Nos. 2         G
    and 3 holding that the findings recorded in appeal arising out of earlier
    suit that they were licensees did not operate as res judicata. Accordingly
    the High Court dismissed the suit for ejectment against defendant Nos.
    2 and 3. Hence this appeal.

          Dismissing the appeal, this Court,                                     H

                                        97
    98          SUPREME COURT REPORTS                [1990] Supp. 2 S.C.R.
                                                                            -...
A         HELD: One of lhe tests to ascertain if a fmding operates as res
    judicata is if the party aggrieved could challenge it. Since the dismissal
    of appeal or the appellate decree was not against defendants Nos. 2 and
    3 they could not challenge it by way of appeal. Even assuming that
    defendant No. 1 rould challenge the fmding that liability of rent was of
    defendant Nos. 2 and 3 as they were in possession he did not file any
B   written statement in the Trial Court raising any dispute between him.
    self and defendants Nos. 2 and 3. There was thus no-occasion for the
    appellate court to make the observation when there was neither plead-
    ing nor evidence. Therefore, from either point of •iew the fmding could
    not operate against defendants Nos. 2 and 3 as res judicata. [lOOE·GI

          Keshardeo Chamria v. Radha Kissen Chamria, [1953 I S.C.R.
c   154; held in applicable.

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2840
    of'l982.

D        From the Judgment and Order dated 5.12.1979 of the Allahabad
    High Court in Second Appeal No. 82 of 1972:

          R.K. Garg and H.K ..Puri for the Appellant.

        Satish Chandra, Pramod Swarup and A.K. Srivastava for the
E   Respondents.

          The Judgment of the Court was delivered by

          R.M. SAHAI, J. In this appeal by grant of special leave, direc-
    ted against judgment of the Allahabad High Court in second sppeal
F   arising out of a suit for arrears of rent and ejectment, the question is if
    the High Court committed any error of law in allowing the second
    appeal on the ground that the two courts beiow had erroneously held
    that finding recorded in an appeal, filed by one of the defendants who
    was sued as tenant in an earlier suit, could not operate as res judicata.
    between plaintiff and respondents who were defendants nos. 2 and 3 in
G   that suit.

          Unfortunately for appellant-equity may or may not be in his
    favour as his father too acted shrewdly while purchasing house of
    daughter-in-law's father but law is certainly not in his favour. How
    dispute arose between parties, who are closely related, is quite
H   interesting. Shiv Charan Das and Har Charan Das (respondents nos. 1
                          RAMESH '· S.C. DASS [SAHA!, J.)                     99

      and 3 in this appeal) are first cousins. Ravindra Kumar (respondent           A
      no. 2) is son of Shiv Charan. His sister was married to son of Ganga

..    Prasad who purchased the only house of Shiv Charan and Ravindra
      Kumar with condition of repurchase by sellers after five years. He
      permitted them to remain in possession, but got a rent note executed
      by Har Charan. Purpose of this became apparent l3ter as immediately
      after expiry of five years when the house was not repurchased Ganga           B
      Prasad (referred hereinafter as plaintiff) filed suit for ejectment and
      arrears of rent against Har Charan, Shiv Charan and Ravindra
      (hereinafter referred as defendants nos. I, 2 and 3) claiming that
      defendant no. I was in arrears of rent and defendant no. 2 and 3 were
      his sub-tenants. The suit was contested by defendants nos. 2 and 3
      only. The Trial Court decreed the suit for arrears of rent against
      defendant no. I. It was held that defendant no. 2 and 3 were not
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      sub-tenants. Therefore suit for ejectment was dismissed. The plaintiff
      submitted to this finding. Aggrieved by the decree for· arrears of
      rent defendant no. I filed appeal which was dismissed. But the appel-
      late court while observing that any evidence led by defendant nos. 2
      and 3 could not be read against defendant no. I observed that it              D
      appeared that they being closely related to defendant no. I were in
      possession on his behalf. This furnished occasion for plaintiff to file
      second suit against three defendants with this change that defendants
      nos. 2 and 3 were claimed to be licensees of ddendant no. I. The Trial
      Court relying on earlier judgment decreed suit for arrears of rent
      against defendant no. I and for ejectment against defendants nos.2 and        E
...   3 as they were licensees. Both defendant no. l separately and defen-
      dants nos. 2 and 3 jointly filed two appeals but without any success.
      Both the' sets approached the High Court also by way of separate
      appeals. The appe~l 0f defendant no. I came up for hearing earlier but
      it was dismissed.
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            The appeal of defendant nos. 2 a.nd 3 came up for hearing before
      another Hon'ble Judge who allowed it and beld that the finding
      recorded in appeal arising out of earlier suit tbat they were licensees
      did not operate as res judicata and the suit for ejectment was dismis-
-
\
      sed. It is the correctness of this finding that has been assailed in this
      Court.                                                                        G

            Although long arguments were advanced but in our opinion the
      only question that arises for consideration is if the finding recorded in
      the appeal filed by defendant no. 1 in which it was he.Id that defendants
      nos. 2 and 3 were in possession on his behalf was binding on them in
      the subsequent suit filed by the plaintiff. In that suit issue no. 2 was if   H
    100        SUPREME COURT REPORTS               [ 1990] Supp. 2 S.C.R.        --
                                                                                 •

    defendant no. 2 and defendant no.3 were sub-tenants. And issue l)O. 5
A


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    was if they were liable to be ejected. The Trial Court while discussing
    these two issues held that there was no question of sub-tenancy of
    these persons as despite sale there was never a break in their posses-           ,
    sion. It was further held that they were not sub-tenants nor they
    claimed to be in possession through defendant no. 1. Therefore they
B   were not liable to ejectment. Against this finding plaintiff did not file
    any appeal. The finding therefore between the plaintiff and defendants
    nos. 2 and 3 became final and binding. The appeal was filed by
    defendant no. 1 as he was aggrieved by the decree of arrears of rent. In
    that appeal it was observed that the evidence led by defendant no~. 2
    and 3 could not be read against him. But the Court while dismissing his
    appeal and upholding the decree of Trial Court observed that since
                                                                                     1
c   they were close relations it appears that even though rent note was
    executed by defendant no. I the possession of defendants nos. 2 and 3
    was on his behalf. This finding could not be taken advantage of by the
    plaintiff for more than one reason. This observation was unnecessary
    as the appeal was dismissed. One could understand if the appeal would
D   have been allowed and the liability for payment of rent would have
    been fastened on defendant no. 2 and 3 as they were in possession. But
    since appeal was dismissed the otder·of Trial Court that liability to pay
    rent was of defendant no. I stood affirmed. Therefore it was an obser-
    vation which was not only off ihe mark but unnecessary. It could not
    accordingly operate as res judicala between defendant no. I and de-
E   fendants nos. 2 and 3 as much less between plaintiff and defendant nos.
    2 and 3. One of the tests to ascertain if a finding operates as res



                                                                                     ..
    judicata is if the party aggrieved could challenge it. Since the dismissal
    of appeal or the appellate decree was not against defendants nos. 2 and
    3 they could not challenge it by way of appeal. Even assuming that
    defendant no. I could challenge the finding that liability ofrent was of
F   defendants nos. 2 and 3 as they were in possession he did not file any
    written statement in the Trial Court raising any dispute between him-
    self and defendants nos. 2 and 3. There was thus no occasion for the
    appellate court to make the observation when there was neither plead-
    ing nor evidence. Therefore, from either point of view the finding
                                                      0



    could not operate against.defendants Nos. 2 a nd 3 as res judicattt.
G    Reliance by the appellant on Keshardeo Chamria v. Radha Kissen
     Chamria, [ 1953] SCR 154, is of no assistance as it only lays down the .
     sin ding effect of a decision in a subsequent suit..

         For the reasons stated above this appeal fails and is dismissed.
    There shall be no order as to costs.
H
    T.N.A.                                                Appeal dismiss.ed.