Holding

The finding in OS 5 of 1978 that the suit property is private and not governed by the Hindu Religious Institutions Act is directly and substantially in issue and therefore res judicata, precluding its alteration in the present appeal.

Summary

The trustees of Gangai Vinayagar Temple leased a plot for a theatre; the lessee died and the trustees sold the land to third parties. The lessees sued for injunction, claiming the sale was void because the property was a public temple and required sanction under the Hindu Religious Institutions Act. Parallel suits for rent arrears were filed and all three suits were tried together. The trial court dismissed the injunction suit (OS 5/1978) on the basis that the defendants had agreed not to evict, but also ruled on the title and nature of the property, finding it private and not subject to the Act. No appeal was filed against that finding. In a later appeal from the rent‑arrears suit, the High Court set aside the title finding and allowed the lessees’ claim, prompting the trustees to appeal. The Supreme Court examined whether the earlier finding was "directly and substantially in issue" and thus res judicata under Section 11 CPC. It held that the title issue was indeed directly and substantially in issue, the finding was binding, and the bar of res judicata applied. Consequently, the appeal was allowed in favour of the trustees and the matter was referred to a larger bench for further consideration.

Issues considered

Whether the finding in OS 5 of 1978 on the title and nature of the property is res judicata under Section 11 of the CPC.
Whether a question of title can be directly and substantially in issue in an injunction suit.
Whether an appeal from a connected suit can set aside findings of another suit where no appeal was filed against those findings.
Whether the Hindu Religious Institutions Act, Section 26, is applicable to the disputed property.

Legislation cited

Code of Civil Procedure, 1908s. 11

Subjects

Res judicataCPC Section 11Hindu Religious Institutions ActTitle of propertyPublic templeInjunctionConnected suitsIssue framingAppeal jurisdiction

Judgment

[2009] 13 (ADDL.) S.C.R. 1209

~
GANGAI VINAYAGAR TEMPLE & ORS. A
v.
MEENAKSHI AMMAL & ORS.
(Civil Appeal No. 4227 of 2003)
~ " SEPTEMBER 3, 2009
B
[MARKANDEY KATJU AND ASOK KUMAR
GANGULY, JJ.]

Code of Civil Procedure, 1908 - s. 11 - Res-judicata -
Applicability of - Suit between the parties taken up together c
- Issues framed and suits disposed of - Appeal from
judgment and decree in suit A - Court while entertaining
appeal, setting aside the finding rendered in suit B which were
binding between the parties inter se, when no appeal was filed
~
from the findings rendered in suit B - Bar of res judicata, if D
attracted - Held: In view of difference of opinion, matter
-:;., referred to larger bench.

Appellants-trustees of a temple, leased out certain
property in favour of respondents-lessee for 15 years to
E
erect a theatre. The original lessee died. Before the expiry
of the lease, the appellants sold the said property to the
_,,.. defendants. The widow of the original lessee filed OS 5
of 1978, suit for injunction to restrain the defendants from
interfering with their possession till the expiry of the
lease. During its pendency, trustees filed OS 6 and 7 of F
1978 to claim arrears of rent from the lessee. All the suits
were tried together. Trial court in O.S No. 5of1978 framed
an issue no. 2-whether the suit property is not the
/

personal property of S and whether the plaintiffs are not

. --..:
estopped from questioning the title of the landlord or his G
vendors. In O.S. 6 and 7 of 1978, the trial court framed
issue no. 3-whether the suit property belongs to a public
temple governed by the Act and if so whether the suit is

1209 H
-.
}----
l

1210 .SUPREME COURT REPORTS {2009] 13 (ADDL.) S.C.R.

A maintainable for want of sanction u/s. 26 of the Hindu _).-

Religious Institutions Act. Issue no 3 was decided with ''
iss~e no. 2. Trial court came to the finding that the suit
property is not a public temple governed by the Act and
since the property is found to be the private property of \_

S, sanction u/s. 26 of the Hindu Religious Institutions Act
t,_
B
is not necessary; that the same having been ~old to
defendants 7 to 9, the latter have become the absolute
owners of the suit property and the plaintiffs in O.S. 5/78
are stopped from challenging the title of the landlord or
c his successors-in-title. Trial. court held that the lessee was
entitled to retain possession of the property for the
duration of the lease in view of the statement the
defendants in their written statement that they had no
intention to interfere with the plaintiff's possession till the
expiry of the lease. OS 5 and 7 of 1978 were dismissed .:i,..
D
and no appeal was filed thereagainst. OS 6 of 1978 was
partially allowed. Respondents 1 to 6 filed an appeal
against the judgment in O.S. No. 6 of 1978. Single Judge
of High Court rejected the contention of the appellant that
the finding of title in their favour by trial court cannot be
E disturbed by the High Court as it was barred by the
principle of res judicata and it was not hearing any appeal
from the judgment in O.S. 5 of 1978. It held that the temple
is a public temple and that the property belonging to the
temple cannot be alienated without obtaining the requisite
F permissibn from the statutory authorities; and that the
finding given by trial judge on the private nature of the
property and on title in favour of the appellant was wholly
irrelevant and unnecessary. The Single Judge set aside
findings reached in OS No.5of1978 and OS No.7of1978.
G The appellant filed an appeal. Division Bench of the High
Court dismissed the same. Hence the present appeal.
4

Referring the matter to the larger Bench, the Court
"'"
HELD:
H
GANGA! VINAYAGAR TEMPLE & ORS. v. 1211
MEENAKSHI AMMAL

Per Markandey Katju, J: A
-'·
1.1. The submission that the finding in the judgment
in O.S. No. 5 of 1978 had become res judicata because
no appeal had been filed against the judgment in the
_.. aforesaid suit cannot be accepted because the prayer in B
O.S. No. 5 of 1978 was only that the plaintiff/lessee should
not be evicted by the defendants' landlord forcibly. In
~· their written statement in the said suit, the defendants-
appellants stated that they were not going to forcibly
evict the plaintiff-lessee. Once this statement was given
in the written statement by the defendants in 0.S. No. 5
c
of 1978, the suit-0.S. No. 5 of 1978 should have been
straightway dismissed. It was wholly unnecessary for the
trial court to go into any other question, including the
question of title in O.S. No. 5 of 1978. [Paras 1~ and 14]
_,,;,_. [1219-G-H; 1220-A-D] D

1.2. One of the tests to decide whether a matter is
directly and substantially in issue or only collaterally and
incidentally in issue is whether it was necessary to
decide the said issue. In the instant case, once the E
defendants had conceded that they were not going to
forcibly evict the plaintiff-respondents but would. only take
__,,. action in accordance with law, then the suit should have
been straightway dismissed on this ground alone, and it
was not necessary for the trial court to have gone into F
any other issue, including the issue of title. The trial court
unnecessarily went into the question of title etc. when it
should have straightway dismissed the suit being O.S.
No. 5 of 1978. [Paras 16, 17 and 19] [1220-G; 1221-A-B-E]

Sajjadanashin Sayed (DJ by Lrs. v. Musa Dadabhai G
Ummer and Ors. (2000) 3 SCC 350; Tamil Nadu Wakf Board
... ""' v. Larabsha Darga, Panruti (2007) 13 SCC 416, referred to .

Per Ganguly, J.
H
1212 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A 1.1. Framing of issues can be of two kinds: issues
of fact and issues of law by Order XIV Rule 1 (1) (a) (b) of
the Code of Civil Procedure. Order XIV Rule 1(1) of the
Code enjoins that issues arise when a material
proposition of fact or law is affirmed by one party and
B denied by the other. Therefore, issue is a disputed
question upon which the parties are at variance and it is
the duty of the Court to ascertain the same. Therefore,
issues are those disputed questions on which the parties
are desirous of obtaining the decision of the Court. [Paras -+
c 35 and 36) [1227-G-H; 1228-A·C)

Black's Law Dictionary 8th Edition, 831, referred to.
1.2. In the instant case from the pleadings, i~ appears
that in the plaint an issue relating to title of the appellant
D in respect of the temple property was raised by the
lessees i.e. respondent nos. 1 to 6 and consequently a
dispute has also been raised about the character ·of the
'"""
temple property and the lessees are claiming that the
property is a public trust. The appellants in their written
E statement and in the additional written statement
controverted those 'contentions and specifically
questioned the competence of the lessees-respondent
nos. 1 to 6 to raise any dispute as regards the title of the
appellant Therefore, within the meaning of Order XIV Rule
F 1 of the Code, an issue has to be framed by the court
about (a) the title of the appellants and also about (b) the
nature and character of the temple property. Once such
issues are framed, it is the duty of the court to pronounce
its judgment on those issues and the trial court has done
that and from which no appeal has been filed. [Paras 37,
G
38 and 39) [1228-C-G)

1.3. It is clear when an issue has been framed in a
"\"'"
case by the court and a finding has been reached on the
same issue, the said finding, in view of Explanation Ill to
H
GANGAI VINAYAGAR TEMPLE & ORS. v. 1213
MEENAKSHI AMMAL
s. 11 of the said Code, is one which has been directly and A
.... substantially in issue in a former suit between the same
parties. The answer to such a question depends on "the
facts of each case". The test is to find out whether the
issue was "necessary" to be decided for adjudicating on
the .principal question and was decided. [Paras 42 and 8
45) [1229-D-E; 1230-B-C]

1.4. In the plaint, the respondents 1 to 6 directly
~
. challenged the right of the trustees to alienate ·their
)lroperty inasmuch as they have averred that the property
is a public trust and cannot be alienated without sanction c
under section 26 of the Act and alienation which has
been made by the trustees tn favour of defendant nos. 7
to 9 is void as they have no title. This is the clear case in
..... the plaint. Therefore, unless a decision on this aspect and
the title of the trustees is rendered, the further decision, D
~

namely, the dismissal of the suit cannot be reached. It
may be a suit for injunction for an order restraining the
defendant nos. 7 to 9 to interfere with the possession of
the lessees but nonetheless the question of title of the
trustees was prominently raised and the pleadings to that E
effect have already been referred. [Paras 46 and 47)
[1230-C-F]

~ 1.5. A question of title may arise even in a suit for
injunction relating to possession. [Para 48) [1230-F] F
Sajjadanashin Sayed Md. B.E. Edr (DJ by Lrs. v. Musa
Dadabhai Ummer and Ors. 2000 (3) SCC 350; Annaimuthu
Thevar (dead) by Lrs. v. Alagammal and Ors. (2005) 6 SCC
202; Swamy Atmananda and Ors. v. Sri Ramakrishna
Tapovanam and Ors. (2005) 10 SCC 51; Williams v. G
Lourdusamy and Anr. (2008) 5 SCC 647, referred to.
~

1.6. It may be true in the instant case the trustees
have taken a stand before the Court that the possession
of the lessees will not be interfered during the tenure of H
1214 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
!
I
I
A the lease and save and except in accordance with law.
>-
But that does not mean that the question of title of the r'

trustees which has been raised and decided is not a
matter which is directly or substantially in issue. [Para 49]
(1231-B-C] >

B "
1.7. In order to give a pronouncement for dismissal
of OS 5 of 1978, it was very crucial for the Court to come
to a finding ·that defendant nos~ 7 to 9 in the suit were
landlords having validly· purchased the said property
from the trustees of the temple, as it was alleged in the
c plaint that the trustees of the temple have unlawfully
transferred the property to the defendant nos. 7 to 9.
[Para 50] [1231-D~E]

. 1.8. The trustees-appellants can validly transfer the ._
D temple property in favour of defendant nos. 7 to 9 only if _,
they have title to the property and only if defendants have
~cquired the valid title to the property, they can initiate
steps for dispossession of the lessees-respondents.
Therefore, the question whether the appellants had title
E to the property and can effect a valid transfer of the
property in favour of defendant Nos. 7 to 9 is inextricably
connected with the ultimate decision of dismissal of the
suit. [Paras 51· and 52] [1231-E-G]

Vithal Yeshwant Jathar v. Shikandarkhan Makhtumkhan
F . Sardesai 1963 (2) SCR 285; Commissioner of Endowments
and Ors. v. Vittal Rao and Ors. (2005) 4 sec 120, referred
to.
1.9. The question of title of the appellant arid the
G nature of the trust property is directly and substantially
in issue. Respondent nos. 1 to 6. invited a finding on
these issues. Having done so, they cannot wriggle out -1~

of the same just because the finding had gone against
them in the judgment arid more so when they did not file
H
GANGAI VINAYAGAR TEMPLE & ORS. v. 1215
MEENAKSHI AMMAL

-----J ~
any appeal against such finding. The said finding can only A
be reversed by a competent court only in a manner
known to law. So the bar of res-judicata uls. 11 of the
Code is attr~cted. [Paras 56 and 60] (1232-D-F; 1233-0]

Tamil Nadu Wakf Board v. Larabsha Darga, Panruti
B
(2007) 13 sec 416, held inapplicable.

• ~
Sheoparson Singh and Ors. v. Ramnandan Prasad
Narayan Singh and Ors. 43 I.A. 91; Daryao and Ors. v. State
of U.P. and Ors. AIR 1961 SC 1457; Hook v. Administrator
General of Bengal and Ors. 1920-21 (48) I.A. 187 - referred c
to.
Nelson v. Couch· (1863) 15 CB (NS) 99, referred to.

Res-judic,ata and Double Jeopardy by Paul A.
McDermott p 19; Corpus Juris Vol. 34 p. 743, referred to. 0

1.10. The question whether finding reached by a
Court of competent jurisdiCtion in a previous suit between
the same parties should operate as Res-judicata or not
does not depend on the reasons on which the said E
finding is based. If the Court reaching the finding has the
jurisdiction to do so, such a finding, in the absence of an
appeal, cannot be diluted merely on the ground that the
reasoning is weak or that the finding is unnecessary,

- .even though it was on a question which was directly and F
substantially in issue between the parties. Some sanctity
has to be attached to a finding which has been reached
by a Court on the basis of the pleadings between the
parties and if such a finding has been invited at the
instance of a party, that party must be held to be bound G
by such finding unless an appeal is carried by the
aggrieved party against such a finding. [Paras 71, 73 and
74] [1236-B-C-F-H; 1237-A]

Premier Tyres Limited v. Kera/a State Road Transport
,H
1216 SUPREME COURT REPORTS (2009] 13 (ADDL.) S.C.R.

A Corporation 1993 Supp (2) SCC 146; Badri Narayan Singh
v. Kamdeo Prasad Singh and Anr. AIR 1962 SC 338 - relied )I-

on.

Tarini Charan v. Kedar Nath AIR 1928 Cal. 777, referred
to.
B
1.11. Neither the Single Bench of the High Court nor
the Division Bench of the same High Court took a correct
view in holding that the finding reached in OS 5 of 1978 ..(_
or OS 7 of 1978 can be modified in the absence of any
c appeal from the said finding. The finding reached by the
trial Judge stands and binds the parties. The said finding
cannot be diluted or watered down in the manner in
which has been done by the High Court. [Paras 78, 79
and 80] (1237-F-H; 1238-C]
D
Case Law Reference: ..,._

Judgment of Markandey Katju, J
(2000) 3 sec 350 Referred to. Para 16
E (2001) 13 sec 416 Referred to. Para 17
Judgment of Asok Kumar Ganguly, J
2000 (3) SCC 350 Referred to. Paras 43, 48, 55, 57
T
F (2005) 6 sec 202 Referred to. Para 48
(2005) 1o sec 51 Referred to. Para 48 '
(2008) 5 sec 647 Referred to. Para 48
1963 (2) SCR 285 Referred to. Para 53
G
· (2005) 4 sec 120 Referred to. Para 54
(2001) 13 sec 416 Held inapplicable. Para 58
43 I.A. 9.1 Referred to. Para 61
H
GANGAI VINAYAGAR TEMPLE & ORS. v. 1217
MEENAKSHI AMMAL

(1863) 15 CB (NS) 99 Referred to. Para 62 A
-(
AIR 1961 SC 1457 Referred to. Para 68

1920-21(48) I.A. 187 Referred to. Para 69

AIR 1928 Cal. 777 Referred to. Para 71
(
B
1993 Supp (2) sec 146 Relied on. Para 75

AIR 1962 SC 338 Relied on. Para 76

CIVIL APPELLATE JURISDICTION : Civil Appeal No. I

4227 of 2003. c
From the Judgment & Order dated 6.1.2003 of the High
Court of Madras in LP .A. No. 17 of 1998.

Jaideep Gupta, Sanjay R. Hegde, A. Rohen Singh for the
D
Appellants.

LN. Rao, G. Masilamani, Surendranath, Santhosh
Krishnan, Senthil Jagadeesan (for V. Ramasubramanian) for
the Respondents. ·
E
The Judgment of the Court was delivered by

MARKANDEY KATJU, J. 1. This appeal by special leave
against the impugned judgment and order dated 6.1.2003 of
1'
the Hi?h Court Madras passed in LP.A. No. 17 of 1~98.
1

i=
.... 2. Heard learned counsel for the parties and perused the
record.

3. The appellants are the Trustees of Shri Gangai
..... Vinayagar Temple, Thirumudi Nagar, Pondicherry. They had
G
executed a lease deed on 8.11.1967 in favour of one Kanniah
Chettiar in respect of a plot of land on which the lessee was to
erect a theatre. The lease was for a period of 15 years
commencing 1.1.1968.
H
~
1218 SUPREME COURT REPORTS (2009] 13 (ADDL.) S.C.R.

A 4. The original lessee died after constructing the theatre
>-
and his widow filed a suit being O.S 125of1976, which came
to be later renumbered as Suit No. 5 of 1978, impleading ~
therein the temple as the first respondent and the members of
the Trust Committee as respondent Nos. 2 to 6. Three persons
B who were alleged to be those to whom the site oh which the \
theatre stood was sought to be sold by the Trustees, were also
impleaded as defendant Nos. 7 to 9. The prayer made in Suit
No. 5 of 1978 was for an injunction restraining the defendants 4.
from interfering with the plaintiffs possession till the expiry of
c the period of lease.

5. During pendency of the said suit (Suit No. 5 of 1978),
the Trustees filed two suits being numbered as O.S. Nos. 6 of
' 1978 and 7 of 1978, claiming arrears of rent from the lessee.
All these three suits were fried together and a common
io judgment was delivered. The trial court held that the lessee was .........._

entitled to retain possession of the property for the duration of
the lease. This finding was given in view of the statement made
by the defendants in their written statement that they had no
intention to interfere with the plaintiffs possession till the expiry
E of the lease. Accordingly, Suit No. 5 of 1978 was dismissed.
/

6. The TrusteHs in their additional written statement filed
in O.S No. 5 of Hl78 had pleaded that the property was the

F
personal property of the temple and the Trustees. Taking note
of thi~ plea the trial. court framed an issue being issue No: 2 in
'
O.S. No. 5of1978 as follows:

Whether the suit property is not the personal property of
Sethuraman Chettiar and whether the plaintiffs are not
estopped from questioning the title of the landlord or his
G vendors?"

7. The lessee or the plaintiff did not question the title of .....
the Trust at any point of time.

8. In O.S. Nos. 6 of 1978 and 7 of 1978, the trial court
H
GANGAI VllNAYAGAR TEMPLE & ORS. v. 1219
MEENAKSHI AMMAL [MARKANDEY KATJU, J.]

framed issue No. 3 which was decided along with issue No. 2 A
in O.S. No. 5 of 1978. In deciding issue No. 2, the trial court
went into the question whether the temple was a public temple
or a private temple, and whether permission from the statutory
authorities was required for effecting the sale of the property
(
to defendant Nos. 7 to 9. Suit O.S. No. 6of1978 was decreed s·
in part while O.S. No. 7 of 1978 was dismissed.

9. The lessee filed an appeal against the decree in O.S.
No. 6 of 1978. No appeal was filed against the judgment in O.S.
No. 5 of 1978. The lessor also did not file any appeal against
the dismissal of his suit, O.S. No. 7 of 1978.
c
10. The learned Single Judge of the High Court who heard
the appeal against the judgment in O.S. No. 6of1978 rejected
the objection raised by the learned counsel for the temple and
its Trustees that the appeal was barred by the principle of res D
judicata. That objection was on the ground that the finding
recorded on issue No. 2 in O.S. No. 5 of 1978 had become
final as no appeal had been filed against the judgment in O.S.
No. 5 of 1978.
E
11. The learned Single Judge also held that the temple is
a public temple and that the property belonging to the temple
cannot be alienated without obtaining the requisite permission
-t"
from the statutory authorities. The learned Single Judge, thus,
reversed the judgment of the trial court on issue No; 3 in O.S.
No. 6 of 1978. F

12. The appellant then filed an appeal before the learned
Division Bench of the High Court against the judgment and
order of the learned Single Judge which was also dismissed.
Hence, this appeal before us by way of special leave. G

"* 13. We have heard learned counsel for the parties at great
length. Shri Jaideep Gupta, learned senior counsel appearing
for the appellant submitted that the finding in the judgment in
0.S. No. 5of1978 had become res judicata because no appeal
H·
i
~
1220 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A had been filed against the judgment in the aforesaid suit. On
,... j
I
the other hand, Shri L. Nageshwar Rao, learned senior counsel,
assisted by Shri G. Masilamani, learned senior counsel,
submitted that the finding in O.S. No. 5of1978 had not become
'
res judicata.
B
14. I am not inclined to agree with the submission of the
learned counsel for the appellant for the simple reason that the
prayer in O.S. No. 5 of 1978 was only that the plaintiff/lessee +
should not be evicted by the defendants' landlord forcibly. In their
c written statement in the aforesaid suit, the defendants
(appellants before us) stated that they were not going to forcibly
evict the plaintiff·lessee. Once this statement was given in the
written statement by the defendants in o.s~ No. 5 of 1978, the
aforesaid suit (O.S. No. 5 of 1978) should have been
straightway dismissed, as the defendants had stated that they ....__
D were not going to forcibly evicUdispossess the plaintiff. It was
wholly unnecessary for the trial court to go into any other
question, including the question of title in O.S. No. 5 of 1978.

15. In this connection we may refer to Section 11 of the
E CPC which states :
"No Court shall try any suit or issue in which the matter
directly and substantiaily in issue has been directly and 't-
substantially in issue in a former suit between the same
parties, or between parties under whom they or any of them
F claim, litigating under the same tile, 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".

G 16. The question sometimes arises as to the meaning of
the expression "matter directly and substantially in issue". One ....
of the tests to decide whether a matter is directly and
substantially in issue or only collaterally and incidentally in issue,
as laid down in the decision of this Court in Sajjadanashin
H Sayed (DJ by Lrs. v. Musa Dadabhai Ummer and others
-
--I GANGA! VINAYAGAR TEMPLE & ORS. v. 1221
MEENAKSHI AMMAL [MARKANDEY KATJU, J.]
4-
(2000) 3 sec 350 (vide paragraph 18), is whether it was A
necessary to decide the said issue.

17. In the present case, it is obvious that once the
defendants had conceded that they were not going to forcibly
evict the plaintiff-respondents, then the suit should have been
B
straightway dismissed on this ground alone, and it was not
necessary for the trial court to have gone into any other issue,
+ including the issue of title.

18. In Tamil Nadu WakfBoardv. Larabsha Darga, Panruti
(2007) 13 sec 416, the facts were that the plaintiffs claimed c
that the suit property was their private property and was not
wakf property. The High Court in the impugned judgment gave
a finding that the suit property was wakf property and was not
•.. .... a private trust property. This Court held that the High court had
no occasion to consider whether the property was private wakf D
or public wakf. This Court held that the subsequent suit for a
declaration that the property belongs to wakf-alal-aulad is not
barred by the principle of res judicata.

19. In my opinion, the trial court unnecessarily went into the
E
question of title etc. when it should have straightway dismissed
the suit being O.S. No. 5 of 1978 in view of the fact that the
...,... defendants had stated in their written statement that they were
not going to forcibly evicit the plaintiff, but would only take action
in accordance with law.
.• F
20. For the foregoing reasons I find no merit in this appeal
and the same is accordingly dismissed. No costs.

GANGULY, J. 1. I have read the draft judgment prepared
by my learned brother, Justice Markandey Katju in this appeal
G
and which was sent to me on 14.8.2009. Unfortunately, I cannot
agree with the draft judgment, rendered by His Lordship,
dismissing the appeal.

2. I am of the view that the appeal should be allowed and
H
' --......
1222 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A the reasons for the said view are stated herein below. ,. .
L
3. This appeal has been filed on behalf of the temple by
the trust committee and also by one of the trustees impugning
the judgment and order of Madras High Court dated 6.1.2003
. whereby the High Court dismissed the appeal filed by the
B )-
present appellants, inter-alia, holding that there is no merit in
the appeal.
4. The question involved in the appeal would appear from
-+
the discussion of the relevant facts in this case.
·C
5. The property in question belonged to the appell~nts and
was leased out to respondent Nos. 1 to 6 for a period of 15
years with effect from 8.11. 1967 and which expired in 1983.

6. On or before 1.7.1976, the property in question was sold ·
D by the appellants to defendant Nos: 7, 8 and 9 and to that effect
a notice was given to the lessees on 14.10.1976 calling upon
them to pay the outstanding arrears of rent upto 1st July, 1976
....._
-
~

..,

to the appellants .
.
E 7. Thereupon, the lessees, the respondent Nos. 1 to 6 filed
a Suit which was ultimately numbered as OS 5 of 1978, inter-
alia, alleging that the appellants have illegally transferred the
property to the defendant Nos. 7 to 9 who were seeking to
interfere with the possession of the respondents and as such
,..
F · an injunction was sought against such interference.
8. The appellants also filed two Suits, namely, OS 6 and
OS 7 of 1978 claiming the arrears of rent till the date of transfer
of property to defendan~ Nos. 7 to 9 i.e 1.7.1976 from the
respondent Nos. 1 to 6.
G
9. All the Suits were heard together.

10. Of these three Suits, OS 5 of 1978 filed by the
respondent Nos. 1 to 6 was dismissed and no appeal was filed
H therefrom. OS 7 of 1978 was also dismissed, no appeal was
GANGAI VINAYAGAR TEMPLE & ORS. v. 1223
MEENAKSHI AMMAL [MARKANDEY KATJU, J.]

_. filed from it either. A

11. OS 6 of 1978 was partially allowed and only again$t
the judgment and decree in OS 6 of 1978, an appeal was filed
by the respondents 1 to 6. ·

12. These facts are not disputed. .s
13. The questions which arise for consideration in this
-~
case is whether the Court while entertaining an appeal from
judgment and decree in Suit 'A' can reverse a finding rendered
in Suit 'B', especially, when no appeal was filed from the c
findings rendered in S!Jit 'B'?

14. As a necessary corollary to the aforesaid issue is
whether the findings reached in Suit 'B', being binding between
~

.. the parties inter-se, can be modified in an appeal from Suit 'A'
in view of the bar of Res-Judicata .
D

15. Arising out of these two questions is a third question
of general importance about the importance of the principle of
Res-judicata which is based on high principle of public policy
in the administration of justice. Whether such principles can be E
ignored by coutts, inter-alia, on the ground that the finding
reached by a Court of competent jurisdiction in another Suit
was unnecessary and whether this Court in exercise of its
discretionary jurisdiction under Article 136 should step in to
prevent an erosion of the doctrine of Res-judicata. F
16. Before answering these questions, I would like to
examine the necessary pleadings, the issues framed and the
findings in the Suits in question.

17. OS 5of1978 G·

..It- In this suit the plaint has been filed by respondent Nos. 1
to 6 challenging the sale of the property by the appellants in
favour of defendant Nos. 7 to 9 and while challenging the same
the following averments have been made: H
1224 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A ".....They (the appellants herein) have no right to sell the
property as the same is trust property belonging to the 1st .....
defendant and such alienation would be totally void being
a breach of trust.. ... n

18. In paragraph 5 of the plaint, it is further averred as
B
under:

" ... The alienation in favour of the defendants 7 to 9 being
void, they have no title to the property ... " -+
t-
c (Emphasis supplied)

19. Opposing the plaint, in the written statement which was r
filed by the present appellants it was stated that the suit is highly
speculative in nature. It was also asserted that the sale made
by the present appellants in favour of defendant Nos; 7 to 9 is ·-'
D valid in law and it was made clear that the plaintiff in the said
-+
. suit (respondent No. 1 to 6 herein) have no· right to challenge ~-

the transfer of ownership by the landlord as they admitted the
title of the defendants (the appellants herein). '::

E 20. An additional written statement was filed in that suit by
the appellants herein in which in paragraph (1) the following
averments were made:

"(1) The~e defendants submit that the plaintiff is estopped ·+.
from either questioning the title of these defendants with
F
respect to suit schedule mentioned property or about
\
transfer of the suit schedule mentioned property in favour ~

of defendants 7 to 9." ~
r

(Emphasis supplied) ._
G •
~I
21. In the written statement which was filed in the said suit )
)..
by the defendant Nos. 7 to 9, it was stated that the plaintiffs
~
(respondents 1 to 6) have no cause of action for·filing the suit ~-

', ..
and it is also asserted that the alienation made in favour of ;
H defendant Nos. 7 to 9 is legal and valid. <
~

,,.
...
'
,
GANGAI VINAYAGAR TEMPLE & ORS. v. 1225
MEENAKSHI AMMAL [MARKANDEY KATJU, J.]

.... 22. On the basis of those pleadings between the parties, A
several issues are framed. The relevant issue for our
consideration and which was framed in OS 5 of 1978 is as
-follows:

"Whether the suit property is not the personal property of
8
Sethurama Chettier and whether the plaintiffs are not
estopped from questioning the title of the landlord or his
-t- vendors?"

OS 6of1978
C,
23._The relevant issue No. 3 in OS 6of1978 is as follows:

"Whether the suit property belongs to a public temple
governed by the Act? If so whether the Suit is maintainable
for want of sanction under Section 26 of the Hindu
~
~eligious Institutions Act."
D

OS 7 OF 1978

24. Similarly, Issue No. 3 in OS 7 of 1978 is as follows:

"Whether the suit property belongs to a public temple E
governed by the Act? If so whether the Suit is maintainable
for want of sanction under Section 26 of the Hindu
~- Religious Institution Act."

25. As noted above, all the Suits were tried together and F
after trying all these issues, the learned trial Court reached the
following finding:

"The suit property is therefore not a public temple governed
by the act and since the property is found to be the private
G
property of Sethurama Chettiar, sanction u/s. 26 of the
Hindu Religious Institutions Act is therefore not necessary.
The suit property being the personal property of Sethurama
Chettiar and the same having been sold to defendants 7
to 9, the latter have become the absolute owners of the
H
1226 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A suit property and the plaintiffs in O.S. 5/78 are stopped
from challenging the title of the present landlord and they ,J._
are bound to attorn the tenancy. They have no right to
question the title of the landlord or his successors-in-title."

(Emphasis supplied)
B
26. After reaching the aforesaid findings in the operating
portion of the judgment, the trial Court by its order dated
6. 11. 1982 held as under: +
c "In the result, O.S. 5/78 is dismissed with cost. O.S. 6n8
is decreed in part with cost as per the calculation above.
Regarding O.S. 1na, since the court has held that-the
entire property is one, there cannot be any lease amount
for the rear portion and it dismissed with cost."
D
27. Against the said judgment and decree, an appeal was~
filed by the lessees i.e respondent Nos. 1 to 6 herein only
against the decree of the II Addi. District Court, Pondicherry
dated 6.11.1982 in O.S. No. 6n8. This is clear from page 84
of the paper book.
E
28. In the said appeal before the learned Single Judge of
the Madras High Court, the present appellants were parties and
they specifically raised the question that the finding of title in
favour of the present appellants by trial Court cannot be .+
F disturbed by the High Court as it was not hearing any appeal
from the judgment in O.S. 5of1978.

29. Ignoring that objection, the learned Single Judge of the
High Court held there was no occasion or need for the learned
G trial Judge to frame the issue, namely, "whether the suit property
is not the personal property of Sethurama Chettiar and whether
the plaintiffs are not estopped from questio!ling the title of the
landlord or his vendors ..... " The learned Single Judge of the -f..-
High Court held that the finding given by learned trial judge on
the private nature of the property and on title in favour of the
H
GANGAI VINAYAGAR TEMPLE & ORS. v. 1227
MEENAKSHI AMMAL [MARKANDEY KATJU, J.]

~appellant was ·wholly irrelevant and unnecessary. In the A
concluding paragraph of a rather lengthy judgment, the learned
Single Judge held as follows:

"In the result, the appeal succeeds and stands allowed in
part to the extent that the findings of the learned trial Judge
8
given under issue No.2 in 0.S. No.5 of 1978 and issue
numbers 3 and 4 in O.S. No.6 and 7 of 1978 alone are
hereby set aside and in respect of the relief claimed and
decreed in part in O.S. No.6 of 1978, the appeal fails and
accordingly it is dismissed partly. Parties to bear own C
costs".

30. It will thus appear that even though appeal was only
from the judgment and decree of trial Court in OS No.6of1978,
the learned Single Judge in appeal set aside findings reached
.._in OS No.5 of 1978 and OS No.7 of 1978. D

31. Against the judgment of the Single Judge, an appeal
was filed before the Division Bench of the. High Court by the
present appellants.

32. The Division Bench of the High Court also came to a E
finding that the issue No.2 in O.S. 5 of 1978 was wholly
unnecessary and is not reflective of the pleas that had been
~taken by the parties and the findings on that issue cannot be
regarded as constituting the immediate foundation for the
ultimate decision in the suit and therefore the bar of Res- F
judicata will not apply.

33. Hon'ble Justice Katju in the judgment prepared by His
Lordship has accepted the said view of the High Court and
dismissed the appeal. Unfortunately, I cannot concur with His G
Lordship.
-'.
34. Several questions fall for consideration in this case.

35. The first is one of the framing of issues. Issues can be
H
...
1228 SUPREME COURT REPORTS (2009] 13 (ADDL.) S.C.R.

A of two kinds; issues of fact and issues of law vide Order XIV A
Rule 1 (1) (a) (b) of the Code of Civil Procedure (for short "the
Code").

36. Order XIV Rule 1(1) of the Code enjoins that issues
arise when a material proposition of fact or law is affirmed by
B
one party and denied by the other. Therefore, issue is a
disputed question upon which the parties are at variance and
it is the duty of the Court to ascertain that, vide Order XIV, Rule -+-
1(5) of the Code. Therefore, issues are those disputed
questions on which the parties are desirous of obtaining the
c decision of the Court (Black's Law Dictionary 8th Edition, 831).
37. In the instant case from the pleadings which have been
discussed above, it appears that in the plaint an issue relating
to title of the present appellant in respect of the temple property
D was raised by the lessees i.e. respondent Nos. 1 to 6 herein -+
and consequently a dispute has also been raised about the
· character of the temple property and the lessees are claiming
that the property is a public trust. ·

38. The appellantsnerein in their written statement and in
E
the additional written statement controverted those contentions
and specifically questioned the competence of the lessees
(respondent Nos. 1 to 6) to raise any dispute as regards the
~
title of the present appellant.
F 39. Therefore, within the meaning of Order XIV Rule 1 of
the Code, an issue has to be framed by the Court about (a)
. the title of the present appellants and also about (b) the nature
and character of the temple property. Once such issues are
framed, it is the duty of the Court to pronounce its judgment on
G those issues and the trial Court has done that and from which
no appeal has been filed.
;l-
40. It has been held by the High Court and it has also been
argued before us c:>n behalf of respondents No.1 to 6 that the
bar of Res-judicata will not apply as the aforesaid two questions
H
GANGA! VINAYAGAR TEMPLE & ORS. v. 1229
MEENAKSHI AMMAL [MARKANDEY KATJU, J.]

~ were not 'directly and substantially in issue' in OS 5 of 1978. A
Now, what is 'directly and substantially in issue' has not been
defined in Section 11 of the Code but it has been explained in
Explanation Ill as follows:

"Explanation /II- The matter above referred to must in the
former suit have been alleged by one party and either
~
denied or admitted, expressly or impliedly, by the other."
t
41. Let us look at the provisions of Order XIV Rule 1(1 ),
which is set out below:
0
"1. Framing of issues: (1) Issues arise when a material
proposition of fact or law is affirmed by the one party and
denied by the other. n
......
~
42. On a comparison between the two provisions set out
above, I discern a conceptual proximity between the two. It is D
thus clear when an issue has been framed in a case by the Court
and a finding has been reached on the same issue, the said
finding, in view of Explanation Ill to Section 11 of the said Code,
is one which has been directly and substantially in issue in a
former suit between the same parties. E

43. Hon'ble Mr. Justice Katju in support of His Lordship's
·'!-- conclusion that those two questions are not directly and
substantially in issue in this case relied on two judgments of
this Court. The first decision on which reliance has been placed F
was rendered in the case of Sajjadanashin Sayed Md. B.E.
Edr (D) by Lrs. v. Musa Dadabhai Ummer and Ors. - 2000
(3) sec 350.

44. In Sajjadanashin (supra) learned Judges considered
GI
the distinction between something which is 'directly and
...4- substantially .in issue' and something which is 'collaterally and
incidentally in issue'. In doing so, learned Judges relied on
Mulla's Civil Procedure Code and various other treaties. ln
paragraph 18 of Sajjadanashin (supra), learned judges
H
1230 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A summarized the principle by saying "a matter in respect of -"'
which relief is claimed in an earlier suit" can be said to be
generally a matter "directly and substantially in issue but it does
not mean that if the matter is one in respect of which no relief ""'
is sought it is not directly or substantially in issue. It may or may
'
B not be". (Para 18, Page 359 of the report).

45. Therefore, it is clear that Mulla has not given any
definite opinion and made it clear that answer to such a t
question depends on "the facts of each case". The test is to
find out whether the issue was "necessary" to be decided for
c adjudicating on the principal question and was decided.

46. In the instant case in the plaint, the respondents 1 to 6
directly challenged the right of the trustees to alienate their
~
property inasmuch as they have averred that the property is a
D public trust and cannot be alienated without sanction under -{

Section 26 of the Act and alienation which has been made by
the trustees in favour of defendant Nos. 7 to 9 is void as they
have no title. This is the clear case in the plaint.

47. Therefore, unless a decision on this aspect and the title
E
of the trustees is rendered, the further decision, namely, the
dismissal of the suit cannot be reached. It may be a suit for
injunction for an order restraining the defendant Nos. 7 to 9 to
interfere with the possession of the lessees buf nonetheless the
. question of title of the trustees was prominently raised and the
F pleadings to that effect have already been referred to above.

48. As a legal proposition, it is well settled that a question
of title may arise even in a suit for injunction relating to
possession. In this connection reference may be made to the
G decisions of this Court in the following cases:

1. Sajjadanashin Sayed Md. B.E. Edr(D) by Lrs. v.
Musa Dadabhai Ummer and Ors., (2000) 3 SCC
350.

H
' GANGA! VINAYAGAR TEMPLE & ORS. v. 1231
•
(
MEENAKSHI AMMAL [MARKANDEY KATJU, J.]

-4. 2. Annaimuthu Thevar (dead) by Lrs. v. Alagammal A
and others - (2005) 6 sec 202.

3. Swamy Atmananda and others v. Sri
Ramakrishna Tapovanam and others, (2005) 10
sec 51. 8
4. Williams v. Lourdusamy and another -(2008) 5
-.- sec 647
49. It may be true in the instant case the trustees have taken
a stand before the Court that the possession of the lessees will c
not be interfered during the tenure of the lease and save and
except in accordance with law. But that does not mean that the
question of title of the trustees which has been raised and
decided is not a matter which is directly or substantially in issue.

50. In order to give a pronouncement for dismissal of OS D
5 of 1978, it was very crucial for the Court to come to a finding
that defendant Nos. 7 to 9 in the suit were landlords having
validly purchased the said property from the trustees of the
temple, as it was alleged in the plaint that the trustees of the
temple ·have unlawfully transferred the property to the defendant E
Nos. 7 to 9.

51. The trustees - appellants herein, can validly transfer
the temple property in favour of defendant Nos. 7 to 9 only if
they have title to the property and only if defendant Nos. 7 to 9 F
have acquired the valid title to the property, they can initiate
steps for dispossession of the lessees i.e. respondent Nos. 1
to 6 herein.

52. Therefore, the question whether the appellants had title G
to the property and can effect a valid transfer of the property in
favour of defendant Nos. 7 to 9 is inextricably connected with
the ultimate decision of dismissal of the suit.

53. It has been held by this Court in Vithal Yeshwant Jathar
H
1232 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A v. Shikandarkhan Makhtumkhan Sardesai - 1963 (2) SCR ;I-.

285 at page 290:

"... It is well settled that if the final decision in any matter at
issue between the parties is based by a Court on its
decisions on more than one point - each of which by itself
B
would be sufficient for the ultimate decision - the decision
on each of these points operates as res judicate between
the parties". +

54. The said qecision has further been relied on by this
c Court in Commissioner of Endowments and others v. Vittal
Rao and others (2005) 4 SCC 120.

55. In Sajjadanashin (supra) this Court held whether a
question is directly and substantially in issue has to be decided
D on examination of the plaint, the written statements .. -.\

56. Going by this test, I am of the opinion that the question
of title of the appellant and the nature of the trust property is
directly and substantially in issue. The lessees - respondent
Nos. 1 to 6 herein invited a finding on these issues. Having done
E so, they cannot wriggle out of the same just because the finding
had gone against them in the judgment and more so when they
did not file any appeal against such finding. The said finding
can only be reversed by a com~etent court only in a manner
known to law.
F
57. So the decision of this Court in Sajjadanashin (supra)
does not support the case of the lessees - respondent No. 1
to 6 in this case.

58. The decision in the case of Tamil Nadu Wakf Board
G v. Larabsha Darga, Panruti - (2007) 13 SCC 416, does not
show throw any light on the controversy in this case. In Tamil ;l
Nadu Wakf Board (supra) it has been held in paragraph 11 at
page 421 of the report that in the earlier Second Appeal, the
High Court had no occasion to consider whether it was a private
H
GANGAI VINAYAGAR TEMPLE & ORS. v. 123~
MEENAKSHI AMMAL [MARKANDEY KATJU, J.]

.. wakf or a public wakf. The plaintiffs claim in this suit was that A
the suit property was a private property and not a private wakf
property. On these claims, the High Court rendered its finding
in the Second Appeal that the suit property was a wakf property
and is not a private trust property. The learned Judges
expressed their agreement with the conclusion of the High· B
Court in the said Second Appeal and held that the same has
no bearing on the issue in the latter proceeding.

59. In the said judgment there is no discussion about the
principle of Res-judicata. Head Note 'B' of the said judgment , C
refers to Section 11 of the Civil Procedure Code on REjs-
judicata, but in the said judgment there is no discussion on the
concept of Res-judicata. Therefore, in Tamil Nadu Wakf Board
(supra) no point on law was decided. It was a decision on the
facts of that case. Therefore, the said decision has hardly any
relevance to decide the controversy in this case. D

60. So the bar of Res-judicata under Section 11 of the
Code is attracted.

61. Res-judicata is an ancient doctrine of universal E
application and permeates every civilized system of
jurisprudence. This doctrine encapsulates the basic principles
in all judicial systems which provide that an earlier adjudication
is conclusive on the same subject matter between the same
parties. The principles of Res-judicata reflect 'a wisdom that
is for all time'. [See Sheoparson Singh & Ors. v. Ramnandan F
Prasad Narayan Singh & Ors., 43 I.A. 91, pg. 98). In this
judgment the Privy Council traced the principle of Res-judicata
from the Old Hindu Text of Katyayana. Res-judicata was also
expounded in Greek custom and also by the Roman jurists.
Reference may be made to Peter Barnett's treatise on 'Res G,
Judicata, Estoppel, and foreign Judgments' Oxford University
Press. In footnote 13 at page 8, the learned author has referred
to Digest Book 50 Chapter 17, which quotes the maxims : res
judicata pro verifate accipitur (a thing adjudicated is received
H
1234 SUPREME COURT REPORTS (2009] 13 (ADDL.) S.C.R. )-

A as the truth); Justinian, Institutes IV 13.5: 'si judicio tecum actum
fuerit sive in rem sive in personam, nihilominus ob id actio durat,
).,
...
et ideo ipso jure posteo de eadem re adversus te agi potest:
sed debes per exceptionem adjurari': if a defendant omits,
either intentionally or negligently, to raise a question .of res
B judicata by an exceptio, no such question will be submitted
whereas, if such a question is properly raised, it must be
considered whether the issue has been rendered res judicata
pro veritate accipitur.].

(Emphasis supplied)
c .......
62. English Common Law which is influenced by Roman
Law also shares the same concept and it has been held by
Justice Willes in Nelson v. Couch - (1863) 15 CB (NS) 99,,at
108 that 'Res-judicata is entirely consistent with the rule of the
D Civil Law'.
63. Paul A. McDermott in his famous treaties on Res-
judicata and Double Jeopardy referring to the concept of Res-
judicata held:
E "Such an idea is not only a fundamental principle of
the common law but is also to be found in Roman law,
Hindu law, African tribal law, Native American Indian law,
Canon law and many modem civil codes. Such apparently
universal acceptance of the need for a rule of this kind has
F led one English judge to eulogise it in the following terms:
"the rule of res judicata, while founded on ancient
precedent, was dictated by a wisdom which was for
all time."
G 64. In the words of Coke, Res-judicata stands for the
"inviolable sanctity of the record" which was of "so high and )....

conclusive a nature as to admit of no contradiction thereof'. It
has been said as nature abhors a vacuum, so "the common
law... abhors infiniteness". [See page 19 of Paul A. McDermott
H
GANGAI VINAYAGAR TEMPLE & ORS. v. 1235
MEENAKSHI AMMAL [MARKANDEY KATJU, J.]

- Res Judicata and Double Jeopardy] . A
...
65. In the recently published Woolf Report in England on
i
Access to Justice, the importance of this doctrine has be.en
I underlined, especially having regard to the public interest
--I
content in this doctrine, namely finality in litigation.
8
66. Thus, the doctrine of Res-judicata is founded on three
principles which are non-negotiable in any civilized version of
~
jurisprudence. They are:

~
1. nemo debet bis vexari pro una et eadem causa: 110 c
man should be vexed twice for the same cause;

2. interest republicae ut sit finis litium: it is in the interest
of the State that there should be an end to a litigation; and

3. res judicata pro veritate occipitur: a judicial decision D
r
mus~ _be accepted as correct, if I may add, in the absence
of a challenge .
• (See: Code of Civil Procedure Vol. I, Justice C.K. Thakker,
Page 119) E
67. In Corpus Juris (Vol. 34 p. 743} explaining the,
importance of this doctrine, the following principles have been
laid down:

---.. "Res judicata is a rule of ~niversaf law pervading , F
every well- regulated system of jurisprudence, and is put
upon two grounds, embodied in various maxims of the
common law; the one, public policy and necessity, which
.,. makes it to the interest of the State that there should be
an end to litigation; the other, the hardship to the individual G
that he should be vexed twice for the same cause."
,A_
68. These very principles have been accepted by a
Constitution Bench of this Court in Oaryao & Ors. v. State of
U.P. & Ors. - AIR 1961 SC 1457 (1462).
H
1236 SUPREME COURT REPORTS [2009) 13 (AOOL.) S.C.R.

A 69. In Daryao (supra), it has also been held that Section ,..
11 of the said Court is. not exhaustive of the said principle of
Res-judicata. And this was pointed long ago in Hook v.
Administrator General of Bengal & Ors. - 1920-21 (48) I.A.
187 at page 194 of the report.
B
70. Therefore, the importance of the doctrine of Res-
judicata can hardly be over emphasized.

71. The question whether finding reached by a Court of +
competent jurisdiction in a previous suit between the same
c parties should operate as Res-judicata or not does not depend
on the reasons on which the said finding is based. In this
connection I may refer to the observations of Chief Justice_
Rankin in a full Bench decision of the Calcutta High Court in
the case of Tarini Charan v. Ke.dar Nath -AIR 1928 Cal. 777.
D The Chief Justice held as under:
" .. the question whether the decision is correct or
erroneous has no bearing upon the question whether it
operates or does not operate as res-judicata"
E 72. The learned Chief Justice further held as under:

"... To say, as a result of such disorderly procedure, that the
previous decision was wrong on a point of law, and that
therefore it may be disregarded, is an indefensible form
F of reasoning."

73. If the Court reaching the finding has the jurisdiction to
do.so, such a finding, in the absence of.an appeal; c~.n.not be
diluted merely on the ground that the reasoning is weak or that
the finding is unnecessary, even though it was on a question
G which was directly and substantially in issue between the
parties.
.l_

74. An action at law cannot be equated with a game of
chess where the players can change and choose their stand
H according to their convenience. Some sanctity has to be
GANGAI VINAYAGAR TEMPLE & ORS. v. 1237
MEENAKSHI AMMAL [MARKANDEY KATJU, J.]

attached to a finding which has been reached by a Court on A
the basis of the pleadings between the parties and if such a
, finding has been invited at the instance of a party, that party
must be held to be bound by such finding unless an appeal is
carried by the aggrieved party against such a finding.
B
75. In a three Judge Bench decision in Premier Tyres
Limited v. Kera/a State Road Transport Corporation - 1993
Supp (2) SCC 146, this Court held that where two suits
connected were tried together and a finding has been reached
in one suit, such a finding becomes final in the absence of any C
appeal. In paragraph 4 of the report, the learned Judges have
laid down the following proposition, which I quote:

"...The question is what happens where no appeal is filed,
as in this case from the decree in connected suit. Effect
of non-filing of appeal against a judgment or decree is that D
it becomes final. This finality can be taken away only in
accordance with law. Same consequences follow when a
judgment or decree in a connected suit is not appealed
from".
E
76. The learned judges in coming to the said conclusion
relied on the principles laid down by a Constitution Bench in
its decision in the case of Badri Narayan Singh v. Kamdeo
Prasad Singh and anofhf!r- AIR 1962 SC 338.

77. Those principles apply on all fours in the present case. F

78. Therefore, I am of the opinion that neither the Single
Bench of the Madras High Court nor the Division Bench of the
same High Court took a correct view in holding that the finding
reached in OS 5 of 1978 or OS 7 of 1978 can be modified in G
the absence of any appeal from the aforesaid finding.

79. The following finding which has been reached by the
learned trial Judge and is set out below stands and binds the
parties:
H
1238 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

"The suit property is therefore not a public temple governed
A
by the act and since the property is found to be the private
property of Sethuram~ Chettiar, sanction u/s. 26 of the
)_
'
Hindu Religious Institutions Act is therefore not necessary.
The suit property being the personal property of Sethurama
B Chettiar and the same having been sold to defendants 7
to 9, the latter have become the absolute owners of the
suit property and the plaintiffs in O.S. 5/78 are stopped
from challenging the title of the present landlord and they +
are bound to attorn the tenancy. They have no right to
c question the title of the landlord or his successors-in-title."

(Emphasis supplied)

80. The aforesaid finding cannot be diluted or watered
down in the manner in which has been done by the High Court.
D
81. The appeal is, therefore, allowed. There shall be no
order as to costs. """
ORDER

E In view of divergence of opinion in terms of detailed
separate judgments, we direct that this matter may be placed
before another Bench, to be nominated by Hon'ble The Chief
Justice.
"""'.
N.J. Matter referred to Larger Bench.