Holding

The subsequent suit filed by the appellant is barred by constructive res judicata.

Summary

The husband of the respondent relinquished his ownership of a house in a village panchayat settlement but did not execute a registered deed. He later executed a mortgage and, together with the mortgagee, sued the wife for a permanent injunction; the suit was dismissed and the judgment became final. The husband subsequently sold the house to the appellant, who filed a suit for declaration of title and possession. The question was whether the appellant's suit was barred by constructive res judicata under Explanation IV to Section 11 of the CPC, given that the earlier suit had directly and substantially involved the issue of ownership. The Supreme Court held that the earlier suit did involve the title issue and that the appellant, litigating under the same title as the husband, was estopped from challenging the wife's claim. Consequently, the appellant's suit was barred by constructive res judicata and the appeals were dismissed.

Issues considered

Whether the doctrine of constructive res judicata under Explanation IV to Section 11 CPC bars the appellant's suit for declaration of title
Whether the question of title/ownership of the suit house was directly and substantially involved in the former injunction suit
Whether an oral settlement in a village panchayat can confer a valid title

Legislation cited

Code of Civil Procedure, 1908s. 11

Subjects

res judicataconstructive res judicataCivil Procedure CodeSection 11Explanation IVinjunctiontitle of immovable propertyownershipmortgagevillage panchayat settlementproperty law

Judgment

AANAIMUTHU THEVAR (DEAD) BY LRS. A
v.
ALAGAMMAL AND ORS.

JULY 12, 2005

[D.M. DHARMADHIKARI AND TARUN CHATTERJEE, JJ.] B

Code of Civil Procedure, 1908-Section I I, Explanation IV-Res
judicata-Husband of respondent no. I, in a panchayat settlement, agreed to
relinquish his right of ownership in suit property in favour of respondent
no. I-But did not execute any registered document to that effect-Instead C
executed a mortgage, and a/ongwith the mortgagee filed a joint suit for
permanent injunction against Respondent no. I-Respondent I in defence
claimed possession in terms of the panchayat settlement-The suit was
dismissed-The judgment attainedfinality-Appellant subsequen(ly purchased
suit property ji·om husband of respondent I and on that basis, instituted suit D
for declaration of title and possession against respondent no. I-Bar of res
judicata-Applicability of-Held: The earlier suit substantially involved
decision or. ownership by husband of respondent I-Though he himself did
not have a registered title at that time, yet as against respondent no. I had
a better title-He ought to have raised such plea but did not-Appellant
being purchaser ji-om husband of respondent I, was litigating under the same E
title which the latter had-Hence was estopped ji-om challenging title of
responde1it I in the subsequent suit filed by him, which was therefore barred
by constructive res judicata.

A settlement was reached in the village panchayat, whereby husband of
respondent no.I agreed to relinquish his right of ownership in the suit house F
in favour of respondent no.I. But he did ~ot execute any formal written and
registered document to that effect. Instead, he subsequently executed a
registered deed of mortgage, and alongwith the mortgagee jointly filed a civil
suit for permanent injunction against Respondent no.I. The suit was
dismissed. That judgment was not appealed against, hence, it attained finality. G
On the date of the suit, there was no formal document of conveyance of
the suit house executed in favour of husband of respondent 1. There existed
on that date merely a right he had inherited in the house allotted to his late
mother. He became owner of the suit house only subsequently when a formal
549 H
550 SUPREME COURT REPORTS [2005] SUPP. 1 S.C.R.

A conveyance deed was executed in his favour by the co-operative housing society.
Thereafter, he sold the suit house by a registered sale deed in favour of the
appellant. On basis of the purchase, appellant instituted a civil suit seeking
declaration of his title and possession from respondent no.1 and her children.

The question which arose for consideration in the present appeals is as
B to whether the subsequent suit filed by the appellant is barred by constructive
res judicata.

Dismissing the appeals, the Court

HELD: 1. Section 11 CPC contains the doctrine of res judicata. The
C former suit was jointly filed by husband of respondent 1 as owner/mortgagor
and the mortgagee. The suit in which decree of permanent injunction was
sought was clearly founded on the claim of husband of respondent 1 as the
owner of the suit house to execute a mortgage. The issue of title or ownership
ofthe suit house was thus directly or substantially involved in the former
D suit. The subsequent suit is by the appellant who is purchaser from husband
of respondent 1. The appellant is, therefore, litigating under the same title
which husband of respondent 1 had in the suit house. [558-F).

/shar Singh v. Sarwan Singh, AIR (1965) SC 948 and Jumma Masjidv.
Kodimaniandra Deviah, AIR (1962) SC 847, referred to.
E
2. In the former suit, respondent no.1 clearly set up her own right of
ownership to the suit house on the basis of settlement and relinquishment of I
the suit house in her favour by the husband in the village panchayat. Claim of '
such ownership and title might have been found ineffectual in law, as pursuant
to such oral relinquishmentin village panchayat, the husband did not execute
F any formal written and registered document. It was open to her husband and
his mortgagee to raise a counter plea that the alleged oral relinquishment in
village panchayat was ineffectual in law and conferred no title on her.
[560-B-C)

3. On the date of former suit, true it is that there was no formal document
G of conveyance of the suit house executed by the society in favour of husband
of respondent 1. There existed on that date merely a right he had inherited in
the house allotted to her late mother. Between an allottee of the house from
the housing society and the person merely in occupation as licencee or
member of the family, the allottee has a better title. In the former suit, the
H claim of husband of respondent 1 was as heir of his late mother who was the
AANAIMUTHUTHEVAR(DEAD)BYLRS.v.ALAGAMMAL[DHARMADHIKARI,J.] 551

allottee of the house and was in possession. As against him, the claim set up A
by his wife was of an oral relinquishment by husband of respondent 1 in her
favour in village panchayat. Between these two competing claims of ownership
and right of possession of the suit house, the husband certainly had a better .
right to remain in possession and, if dispossessed, to claim possession. This
ground of seeking possession and permanent injunction was available to B
husband of respondent 1 against his wife in support of his joint claim with
his mortgagee. The aforesaid plea founded on ownership and mortgage having
not been raised in the former suit, the doctrine of constructive res judicata
under explanation IV to section 11 of the Code is clearly attracted.
[560-E-G)

4. It cannot be accepted that in the absence of formal deed of conveyance
c
of the suit house by the housing society in favour of husband of respondent 1
, the issue of title to the suit house could neither be raised nor was raised in
the former suit. The plea of ownership to the suit house was substantially
involved for seeking relief of permanent injunction. Undoubtedly, such plea
of ownership could and ought to have been raised in the former suit. Therefore, D
the subsequent suit filed by the appellant as purchaser from husband of
respondent I is barred by constructive resjudicata. (559-F; 561-A-B]

Sulochana Amma v. Narain Nair, (1994) 2 SCC 14, relied on.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2592-2593 of E
2000.

From the Judgment and Order dated l 2.4.99 of the Madras High Court
in S.A.Nos. l 150 and 1154 of 1987.

S. Nanda Kumar, Anuj Kumar Chauhan and Rakesh K. Sharma for the F
Appellant.

V. Prabhakar, R.S. Krishna Kumar, Asok K. Sadhu Khan and M.K.D.
Namboodiri for the Respondents.

The Judgment of the Court was delivered by G
DHARMADHIKARI, J. In these two appeals arising out of the impugned
common judgment passed by the High Court of Madras in Second Appeal,
the neat question involved is one of res judicata. The trial court in its
common judgment passed in cross suits jointly tried came to the conclusion
that the judgment in former suit OS No. 843/74 between the predecessor-in- H
552 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

A title of the appellant and the respondents cannot operate as res judicata to
bar the present suit claiming title to the suit property by the appellant. The
High Court by the impugned common judgment in Second Appeal has reversed
the judgment of the two courts below and held that the judgment in former
suit OS No.843/74 decided on 28.2.1976 operates as res judicata under section
B 11 of the Code of Civil Procedure. Consequently, the suit filed by the appellant
has been dismissed and the cross suit filed by the respondents has been
decreed.

The facts necessary for deciding the issue of res judicata are as under:-

The property involved in the two cross suits is house door No.206 in
C Harvaipatt township in Madurai, South Taluk. The house was allotted by
Madurai Mills Cooperative Housing Society to mother ofMuthuswami Naidu
(the husband of respondent No. I and father of respondents 3 to 7). After the
death of mother, the formal document of conveyance by the Housing Society
came to be issued in favour ofMuthuswami Naidu on 15.3.1975. Muthuswami
D Naidu executed a mortgage deed on 3.12.74 for raising a loan of Rupees three
thousand from one Chhinnaswamy who was co-plaintiff with him in the former
suit OS No. 843 of 1974.

Muthuswami Naidu as the mortgagor under mortgage deed dated
3.12.1974 and Chinnaswamy as the mortgagee jointly filed civil suit as OS No.
E 843/74 in the court of District Munsiff, Thirumangalam against respondent
Alagammal (the wife of Muthuswami respondent No. I herein). The mortgagor
and mortgagee filed suit simplicitor for seeking permanent injunction to restrain
the respondent wife of Muthuswami from interfering with the possession of
the suit house on the ground that it was owned and possessed by them.

F The aforesaid suit OS No.843/74 was resisted by the respondent wife
pleading inter alia that when disputes had arisen in the married life of the
parties, a village panchayat was called in the year 1971 in which the respondent
agreed to relinquish his ownership of the suit house in favour of his wife and
children for their residence on the condition that his wife would discharge
G dues against the house. In that suit the wife denied the existence of any
alleged mortgage deed and questioned validity of the same.

On the pleadings of the parties in the former suit OS No.843/74, the
following issues were framed:-

H (1) Whether the othi deed (mortgage deed) dated 3.12.1974 executed
AANAIMUTHUTHEVAR(DEAD) BYLRS. v. ALAGAMMAL [DHARMADHIKARI ,J.] 553

in favour of the second plaintiff is true, valid and binding upon A
the defendant?
(2) Whether the plaintiffs are entitled to the relief of injunction
prayed for?

(3) Whether the defendant was in possession of the suit property?
B
(4) Whether the suit is bad for non-joinder of a necessary party?

(5) Whether tfie alleged settlement pleaded by the defendant is true?

(6) To what relief, if any, are the plaintiffs entitled?

On the first issue, the trial court held that registered mortgage deed C
seemed to be genuine but it was not binding as mortgagor had failed to enter
the witness box to prove it. On issue Nos.2 & 3, the trial court answered \hem
in favour of the respondent wife by recording a finding that she had proved
to be in possession of the suit house. Tax receipts evidencing payment of
house tax were relied in proof of her possession. On thee findings, it was held
that relief of permanent injunction to restrain the respondent wife from enjoying D
the suit property could not be granted. On issue no. 4 regarding the alleged
settlement reached in village panchayat and relinquishment of ownership and
right by Muthuswami in the suit house in favour of his wife and children, the
trial court recorded a finding that fact of such settlement in panchayat had
been proved. The finding recorded in the words of the trial court is as under:- E
"In as much as the possession of the defendant on the date of the
suit having been established and no evidence having been let in by
the plaintiffs to disprove the allegation that the property was settled
upon the defendant in a panchayat which was held about 4 years ago.
It has to be held that settlement pleaded by the defendant is true. I F
answer this issue in favour of the defendant."

• Issue No.4 on non-joinder of children as parties to the suit, was also
decided in favour of the defendant. It was held that in the Panchayat settlement,
the husband relinquished the property in favour his wife and children.
Therefore, children were necessary parties and the suit was bad for mis- G
joinder of a necessary party.

The aforesaid judgment with decree of the trial court at Thirumangalam
in suit OS No.843/74 was not appealed against by Muthuswami Naidu, the
husband or his mortgagee and has attained finality.
H
554 SUPREME COURT REPORTS [2005) SUPP. I S.C.R.

A After the judgment and decree against him in the above mentioned suit
OS No. 843/74, Muthuswami Naidu sold the suit house by registered sale-
deed at 15.3.1975 in favour of Annaimuthu Thevar the appeliant herein. On
the basis of his purchase, the present appellant instituted civil suit OS
No.335/83 seeking declaration of his title and possession from respondent
and her children.
B
The respondent wife jointly with her children filed cross suit registered
OS No.202/84 seeking permanent injunction against the present appellant
claiming ownership of the suit house under the settlement of the year 1971
in panchayat and the consequent judgment and decree passed inter se between
C her and her husband Muthuswami in civil suit OS No.843/74 decided on
28.2.1976. The cross suits were jointly tried and decided by common judgments
giving rise to two appeals before the first appellate court and two second
appeals before the High Court which have all been decided by common
judgments.

D The trial court and the first appellate court by common judgments
delivered by them respectively rejected. the plea of res judicata raised by the
respondent wife and her children on the ground that in the former suit OS
No. 843/74 the question of title to the suit house was neither directly nor
substantially involved and decided. The trial court and the first appellate
court, therefore, decreed the suit of the present appellant and dismissed the
E cross suit of the wife and children.

The High Court in the two Second Appeals by the impugned judgment,
however, took a contrary view and reversed the judgments of the courts
below. On examining the counter pleas and the judgment of the trial court in
F the former suit between the husband and wife, the High Court came to the
conclusion that the bar of res judicata squarely applied to the subsequent suit
filed by the purchaser of the suit property from the husband of the respondent
wife. According to the learned Judge of the High Court in the former suit, the
right and title of husband Muthuswami to the suit house was substantially
involved which was negatived and the right of the wife and children was
G upheld. The finding of res judicata recorded by the High Court needs to be
reproduced as arguments have been addressed on it by the learned counsel
on either side before us in these appeals :-

"In the earlier judgement right and title of Muthuswami had been

H
negatived and that of Alagammal and her children were upheld.
Therefore it follows that the plaintiff in the present suit claiming title ...
AANAIMUTHU THEVAR(DEAD) BY LRS. v. ALAGAMMAL [DHARMADHIKARI, J.] 555

through Muthuswami cannot be sustained as by the earlier judicial A
determination right, title and interest of Alagammal and her children
had been upheld and that of Muthuswami had been negatived. The
earlier decision namely Ex.B.14 and B.15 definitely constitutes res
judicata. That apart, a finding in the earlier suit that Muthuswami has
no title or interest in the suit property and Alagammal and her children B
are the owners was the decision which had been directly and
substantially necessary for the disposal of the suit O.S. No. 843 of
1974 and therefore it has to be held that the issue in the earlier suit
in which the matter was directly and substantially an issue constitutes
res judicata. "

The High Court placed reliance on the decisions of this Court reported
c
in Sulachana Amma v. Narain Nair, [1994] 2 SCC 14; lshar Singh v. Sarwan
Singh, [AIR (1965) SC 948 and Jumma Masjid v. Kodimaniandra Deviah, AIR
(1962) SC 847.

Learned counsel appearing for the appellant after taking us through the D
issues and findings recorded by the trial court in the former suit OS No.843/
74 contended that question of title to the suit house was neither expressly
nor substantially involved in the said suit and therefore the judgment cannot
operate as res judicata in the subsequent suit. The contention advanced is
that the suit was filed on the basis of a mortgage deed executed on 3.12.1974
by Muthuswami in favour of Chinnaswamy. In that suit jointly filed, E
Muthuswami was not examined to prove the mortgage deed and hence decree
of permanent injunction was refused on a finding that the respondent wife
and her children were in possession of the suit house on the basis of the
alleged settlement in village panchayat which was reached for resolving
family dispute between Muthuswami Naidu - the husband and his wife the F
respondent.

On the other side, learned counsel appearing for the respondent wife
and her children supported the judgment of the High Court by contending
that the former suit was for permanent injunction on the basis of right claimed
by Muthuswami Naidu as owner of suit house with competence to execute G
a mortgage deed in favour of Chinnaswamy plaintiffNo.2 in that suit. The suit
for injunction substantially was based on the claim of ownership of the suit
house by the mortgagor and the right to remain in undisturbed possession
by the mortgagee. It is, therefore, contended that the issue of title was directly
and substantially in issue in the former suit. Alternatively, it is argued that H
556 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

A doctrine of constructive res judicata in accordance with Explanation IV to
section 11 of the Civil Procedure Code clearly barred the subsequent suit filed
by the purchaser from Muthuswami. Reliance is placed on AIR (I 966) SC 1061
and [1997] 2 sec 552.

The main legal question that requires decision is whether the judgment
B in the fonner suit directly or constructively operates as res judicata in the
subsequent suits which have given rise to these appeals.

The undisputed facts are that the house in suit was initially allotted to
the mother of Muthuswami by Madurai Mills Co-operative Housing Society.
C After the death of his mother, Muthuswami as son inherited the right in the
house. The house was in possession of the family of Muthuswami. According
to the case of the respondent wife, Muthuswami was a spendthrift and had
wayward habits. As pleaded in the fonner suit, differences and family disputes
arose between Muthuswami and her. In the year 1971, a village panchayat was
held in which Muthuswami agreed to relinquish his right of ownership in the
D suit house in favour of his wife and children. However, pursuant to the
decision of the panchayat and the commitment made by the husband in the
course of panchayat proceedings, no fonnal document of conveyance came
to be executed in favour of the wife.

Instead of honouring the commitment made in the village panchayat,
E Muthuswami executed the registered deed of mortgage on 3.12.1974 in favour
of Chinnaswamy. Muthuswami as the mortgagor and Chinnaswamy as the
mortgagee jointly filed the former suit OS No. 843 of 1974 against Alagammal
wife ofMuthuswami, for seeking a decree of permanent injunction simplicitor.
The foundation of the suit as appears from the judgment, was that Muthuswami
F as the owner of the suit house had executed a mortgage with delivery of
possession to Chinnaswamy. The cause of action for the suit seeking mandatory
injunction was alleged to have arisen as the wife ofMuthuswami was asserting
her right to the suit house and interfering with their possession. The aforesaid
former suit was resisted by Alagammal mainly on the ground that in the
village panchayat her husband had relinquished his right of ownership of the
G suit house in her favour and their children for their residence. She also denied
the existence and validity of the registered mortgage deed.

The issues framed in the former suit have been reproduced above. No
specific issue seems to have been framed on title or ownership of the suit
house but the issues raised on the existence and validity of the mortgage
H deed and the fact or otherwise of the alleged settlement pleaded by the

r-
MNAIMUTHUTHEVAR(DEAD) BY LRS. v. ALAGAMMAL [DHARMADHIKARI ,J.] 557

defendant in the village panchayat substantially involved decision on claim A
of right and ownership of the house by the husband. The other issue raised
was concerning the dispute as to who was in possession of the suit house.

As is apparent from the judgment in the former suit, Muthuswami, who
was claiming to be the owner and the mortgagor, did not enter the witness
box either to prove the execution of the mortgage or to deny the case pleaded B
by his wife that he had relinquished his right in the suit house in the
settlement reached in the village panchayat. The suit jointly filed by
Muthuswami as owner/mortgagor and Chinnaswamy as mortgagee was
dismissed on findings inter a/ia that mortgage was not proved and that in
village panchayat, a settlement had indeed taken place in favour of wife and C
children who were in possession. It was also held that the children were
necessary parties to the suit and their non-joinder was fatal to the suit. The
dismissal of the suit filed by Muthuswami as mortgagor and Chinnaswamy as
mortgagee against wife of the former was not appealed against by either of
the plaintiffs. The same, therefore, attained finality.
D
The present cross suits arose when Muthuswami, after obtaining a
formal conveyance deed of the house from the housing society on 15.3.1975,
executed a registered deed of sale of the suit house on 28.2.1983 in favour
of the present appellant.

The present two appeals arise out of the cross suits - the one filed by E
the purchaser on the basis of registered sale deed in his favour on 28.2.1983,
against the wife of Muthuswami and her children. The other suit was filed by
wife of Muthuswami and her children seeking injunction against her husband
and the present appellant as purchaser from him.

On these above undisputed facts, the main argument advanced by the F
learned counsel for the appellant is that at the time of filing of the former suit,
Muthuswami had neither any transferable title nor any right to execute a
mortgage. He became owner of the suit house only on 15.3.1975 when a formal
deed of conveyance was executed in his favour by the housing society. It is
also submitted that in the former suit, there was no issue of title or ownership G
of the suit house directly. or substantially involved. The findings and the
judgment in the former suit against Muthuswami and the alleged mortgagee
rested on the grounds of non-proof of mortgage deed, fact of settlement in
village panchayat and possession of the house to be with the wife and
children. Non-joinder of children as parties to the suit was also additional
H
558 SUPREME COURT REPORTS [2005] SUPP. l S.C.R.

· A ground to dismiss the former suit. The present subsequent suit is founded
on the registered sale deed executed on 28.2.1983 by Muthuswami after he
had obtained a saleable title under formal deed of conveyance from the
Housing Society on 15.3.1975.

On the other side, learned counsel appearing for the wife Alagammal
B and her children supported the judgment on doctrine of res judicata as
applied by the High Court to the subsequent suits. He contends that in the
issues framed in the former suits, the question of title and ownership of the
suit house were substantially involved. In any case, the doctrine of constructive
res judicata applies under explanation IV to section 11 of the Code of Civil
C Procedure to the present case.

Section 11 of the Code which contains the doctrine of res judicata
states

"l l. Res judicata.- No court shall try any suit or issue in which the
matter directly and substantially in issue has been directly and
D
substantially in issue in a former suit between the same parties, oi:
between parties under whom they or any of them claim, litigating
under the same title, in a Court competent to try such subsequent suit
or the suit in which such issue has been subsequently raised, and has
been heard and finally decided by such Court."
E
[Emphasis added]

The main part of section 11 undoubtedly applies. The former suit was
jointly filed by Muthuswami as owner and mortgagor with the mortgagee. The
subsequent suit is by the appellant who is purchaser from MuthuswamL The
F present appellant is, therefore, litigating under the same title which Muthuswami
had in the suit house.

The next question that arises is whether the issue of ownership and title
in the suit house was directly and substantially in issue in the former suit or
not. In the subsequent suit undoubtedly the foundation of claim is title
G acquired by the present appellant under registered sale deed dated 28.2.1983
from Muthuswami.

If we examine the nature of claim and pleadings in the former suit of
Muthuswami as mortgagor and plaintiff No. 2 the mortgagee, the suit appears
to be based on the alleged right of Muthuswami as the owner to execute the
H
AANAIMUTHUTHEVAR(DEAD) BYLRS. V. ALAGAMMAL [DHARMADHIKARI' J.] 559
mortgage. The decree of mandatory injunction in the former suit was sought A
on the ground that Muthuswami could execute a valid mortgage with
possession in favour of the mortgagee and defendant wife had no right or
title, whatsoever, to interfere with the possession of the plaintiffs. The suit
was resisted by the wife Alagammal on the grourid that she had been placed
in possession of the suit house with her children for their residence on the B
alleged settlement reached in the village panchayat in the year 1971 in which
her husband relinquished his right in the suit house in their favour. True it
is, that relinquishment of an immovable property cannot be validly made
without a written and registered document. It seems from the conduct of
Muthuswami that he had no courage to enter the witness box in the fonner
suit to face the cross-examination on behalf of the wife on the existence of C
alleged settlement in the village panchayat and relinquishment by him of his
right in the suit house. It is apparent that he wanted to wriggle out of that
settlement reached in village panchayat. As a first attempt in that direction
he executed a mortgage deed to enable the mortgagee to institute a suit
against his wife to dispossess her and deprive her of the right in the house
which Muthuswami had earlier agreed to grant to her in the village panchayat. D
Having failed in the joint suit filed by him with his mortgagee, he did not
prosecute the litigation any further and preferred no appeal. As a second
attempt to deprive his wife and children of right in the house, he executed
a registered sale deed in the year 1983 in favour of the present appellant. The
aforementioned sale deed was executed after he had obtained a document of E
conveyance from the housing society and that he could obtain being an heir
his'late mother who was the original allottee of the house from the housing
society. The present subsequent suit has been filed by the present appellant
who is purchaser by registered deed dated 28.2.1983 obtained from
Muthuswami.
F
The former suit in which decree of pennanent injunction was sought
was clearly founded on the claim of Muthuswami as the owner of the suit
house to execute a mortgage. The issue of title or ownership of the suit house
was thus directly or substantially involved in the former suit.

We find sufficient force in the alternative contention advanced on G
behalf of wife Alagammal and her children that doctrine of constructive res
judicata, as contained in explanation IV to section 11 of the Code certainly,
can be invoked against the present appellant, who claims by a purchase from
Muthuswami. Explanation IV to section 11 of the Code states :-
H
560 SUPREME COURT REPORTS [2005) SUPP. l S.C.R.

A "Explanation IV .-Any matter which might and ought to have been
made ground defence or attack in such former suit shall be deemed
to have been a matter directly and substantially in issue in such suit."

In the former suit, respondent Alagammal wife of Muthuswami clearly
set up her own right of ownership to the su.it house on the basis of settlement
B and relinquishment of the suit house in her favour by the husband in the
village panchayat. Claim of such ownership and title might have been found
ineffectual in law, as pursuant to such oral relinquishment in village panchayat,
the husband did not execute any formal written and registered document. On
the aforesaid plea of wife Alagammal, in the former suit in which she had set
C up claim of ownership of the suit house on the relinquishment of right by her
husband in village panchayat, it was open to her husband Muthuswami and
his mortgagee to raise a counter plea that the alleged oral relinquishment in
village panchayat was ineffectual in law and conferred no title on her.

In the former suit the wife had claimed to be in possession with her
D children of the suit house pursuant to the settlement reached with her husband
in the village panchayat. In the former suit, in reply to the plea of the wife,
it was open to the plaintiffs to alternatively seek a decree of possession on
the basis of their title to the suit house.

On the date of former suit, true it is that there was no formal document
E of conveyance of the suit house executed by the society in favour of
Muthuswami. There existed on that date merely a right he had inherited in the
house allotted to her late mother. Between an allottee of the house from the
housing society and the person merely in occupation as licencee or member
of the family, the allottee has a better title. In the former suit, the claim of
F Muthuswami was as an heir of his late mother who was the allottee of the
house and was in possession. As against him, the claim set up by his wife
was of an oral relinquishment by Muthuswami in her favour in village
panchayat. Between these two competing claims of ownership and right of
possession of the suit house, the husband certainly had a better right to
remain in possession and, if dispossessed, to claim possession. This ground
G of seeking possession and permanent injunction was available to Muthuswami
against his wife in support of his joint claim with his mortgagee. The aforesaid
plea founded on ownership and mortgage having not been raised in the
former suit, the doctrine of constructive res judicata under explanation IV to
section 11 of the Code is clearly attracted.

H We can not prepared to accept the argument advanced on behalf of the
AANAIMlTTHUTHEVAR(DEAD)BYLRS. v. ALAGAMMAL [DHARMADHIKARI ,J.] 561

above appellant as the successor-in-title of Muthuswami that in the absence A.
of formal deed of conveyance of the suit house by the housing society in
favour of Muthuswami, the issue of title to the suit house could neither be
raised nor was raised in the former suit. On the exami~ation of case pleaded
by the parties in the former suit and the judgment rendered therein we find
that the plea of ownership to the suit house was substantially involved for
seeking relief of permanent injunction. Undoubtedly, such plea of ownership B
could and ought to have been raised in the former suit. Therefore, this
subsequent suit filed by the present appellant as purchaser from Muthuswami
is barred by constructive res judicata and the High Court was right in holding
accordingly. See the following observations of this Court in the case of
Sulochana Amma v. Narayan Nair, [1994] 2 SCC 14 :- C
"(It was) contended that the remedy of injunction is an equitable relief
and in equity, the doctrine of res judicata cannot be extended to a
decree of a court of limited pecuniary jurisdiction. We· find no force
in the contention. It is settled law that in a suit for injunction when
title is in issue for the purpose of granting injunction, the issue D
directly and substantially arises in that suit between the parties.
When the same issue is put in issue in a later suit based on .title
between the same parties or their privies in a subsequent suit the
decree in the injunction suit equally operates as res judicata. "

For the reasons aforesaid, these two appeals preferred by the appellant E
are dismissed and the judgment of the High Court is upheld.

In the circumstances, we make no order as to costs in these appeals.

B.B.B. AppeaJs dismissed.