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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2579 OF 2004
Md. Nooman & Ors. ....Appellants
Md. Jabed Alam & Ors. ....Respondents
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 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 (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 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. Lukman, the 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 from 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 (BDO) and the municipality for mutation of her name in respect of
the suit house in the revenue and municipal records. The defendant Md.
Lukman, filed an objection before the BDO, 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 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 13, 1973. She then 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.
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 forged 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 the 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
taken the suit house from the plaintiff on a monthly rent of Rs.10.00 (rupees
ten only). He never paid any rent to the plaintiff, nor was any rent due
4. On the basis of the pleadings of the parties, the trial court framed
seven issues, of which issue nos.3 & 4 relating to the plaintiff's claim of title
over the suit property and issue no.5 about the relationship of landlord and
tenant between the parties are relevant for this appeal. Those three issues are
"3. Has the plaintiff got title to the suit land?
4. Is the sale deed genuine, valid and for consideration?
5. Is there any relationship of landlord and tenant between the
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 court upheld the plaintiff's claim of title to the property arriving at the
"In view of the discussion made above I hold that the sale deed
(Ext.4) is genuine and that story set up by the 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 plaintiff's 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 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, 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
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 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
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
"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 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 fee on twelve month alleged rent of the
house, the plaintiff 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
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 of title 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 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 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 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 plaintiff's husband was a clever litigant and he manoeuvred to
fabricate the sale deed by setting up some other woman as
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 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 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 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.
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 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. III, IV,
V & VI are relevant for this appeal and are as follows:
"III) Has the plaintiff got title over the suit property?
IV) Is there any relationship of landlord and tenant between the
plaintiff and the defendant?
V) Has the plaintiff acquired title by adverse possession?
VI) Is the plaintiff entitled to recovery of possession? "
The trial court considered issue nos. III, IV & V together and 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. III & V were
therefore decided in the plaintiff's favour while issue no. IV was decided
against her. On the basis of its findings, the trial court held that the plaintiff
had valid cause of action and it, accordingly, decreed 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 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 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 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:
"...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, 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 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. 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 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 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 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 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. 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 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 of title and recovery of possession. In support of the submission
he relied upon a decision of this Court in Shamim Akhtar v. 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 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 Akhtar in no way helps the case of the appellants in the present
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., (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 Mr. Agrawal with great fairness
brought to our notice a decision of the Patna High Court1 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 Council. In Pardip
Singh Meredith J., speaking for the division bench of the court observed as
To which both, Mr. Agrawal and the two of us have been very closely associated at some time.
"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 between the parties and in
each case it is necessary to examine carefully the decision in the
rent suit before any 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 in
two Privy Council decisions, namely, Run Bahadoor Singh v.
Mt. Lucho Koer, 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 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
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 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 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 order as to costs.
(R.M. LODHA)New Delhi,
September 22, 2010