Holding

The earlier judgment’s determinations of ownership and tenancy are binding as res judicata, including constructive res judicata, and the trial court’s decree for possession is valid.

Summary

Ramadhar purchased a house from Hiralal, who was held by a trial court to be the absolute owner. In the earlier suit, the court found that Bhagwandas was a tenant paying rent to Hiralal and, after the sale, became a tenant of Ramadhar; the suit against him was dismissed. In a later suit for eviction and arrears, the trial court relied on those findings and decreed possession in favour of Ramadhar. The appellate courts reversed, holding no landlord‑tenant relationship existed and set aside the decree. The Supreme Court held that the earlier judgment's findings on ownership and tenancy constitute both res judicata and constructive res judicata under Explanation IV to Section 11 of the CPC, binding Bhagwandas, and restored the trial court's decree for possession.

Issues considered

Whether the findings of ownership and tenant status in the earlier suit operate as res judicata in the subsequent eviction suit.
Whether Explanation IV to Section 11 of the CPC (constructive res judicata) applies to the present case.
Whether the trial court was justified in granting possession to the appellant.

Legislation cited

Subjects

res judicataconstructive res judicataSection 11 CPClandlord-tenant relationshippossession decreeownership of propertyjoint family propertyeviction

Judgment

A RAMA DHAR SHRIV AS
v.
BHAGWANDAS

OCTOBER 27, 2005

B (R.C. LAHOTI, CJ., C:K. THAKKER AND P.K. BALASUBRAMANYAN, JJ.]

Code of Civil Procedure, 1908:

Section 11 Explanation IV:
c
Constructive Res Judicata-Matter constructively in issue-A matter
'might and ought' to have been made a ground of defence or attack and
parties had an opportunity of controverting the same-Held, to be taken as
-
if the matter has been actually controverted and decided-Object is to take
D all the grounds of attack or defence in one and the same suit.

Appellant, after purchase of a house from his vendor, filed suit for
dispossessing inter a/ia the respondent who had forcibly taken possession of
a portion of the house, claiming the house to be their ancestral property and
as such the vendor had no right to sell the same. Trial court held that the
E vendor was absolute and full owner of the property and he had a right to sell
it to the appellant and, accordingly, the sale was held to be legal, valid and in
accordance with law. As· regards the respondent rejecting his contention, the
court found that he was occupying the property as tenant under the vendor
and after the sale, under the appellant but was not paying rent to him.
Respondent was not held to be in unauthorized possession or a 'trespasser'
F but was tenant, and, therefore, the suit was dismissed against him. Subsequent
suit for eviction and arrears of rent was decreed holding that there was
relationship of tenant and landlord. The Appellate court, however allowed the
appeal and dismissed the suit Second appeal preferred by the appellant was
dismissed by the High Court. Hence, this appeal.

G Appellant contended that ownership of the appellant over the suit
property was conclusively established in the earlier suit and it operated as
res judicata and the respondent was bound by it. It was further contended that
if it was the case of the respondent that the was in lawful possession in any
capacity other than tenant, he ought to have raised such defence in the earlier
H 808
RAMADHAR SHRIV AS v. BHAGWANDAS 809
proceeding. A
Respondent, on the other hand, contended that the so called finding
recorded in the earlier proceeding was collateral and incidental in nature
and would not operate as res judicata in the subsequent suit.

Allowing the appeal, the court B
HELD I.I. It is not open to the respondent to deny the title of the appellant
since in appropriate proceeding, a finding has been recorded as to ownership
of the property and a decree has been passed by a competent civil court holding
the appellant to be the owner which has attained finality and would operate as
res judicata. 1816-A; 817-A] C

1.2. Rule of constructive res judicata applies to the present case. A
matter is actually in issue when it is in issue directly and substantially and
a competent court decides it on merits. A matter is constructively in issue
when it 'might and ought' to have been made a ground of defence or attack in D
the former suit. Where the parties have had an opportunity of controverting
a matter that should be taken to be the same thing as if the matter had been
actually controverted and decided. (818-B, C, EJ

Pawan Kumar Gupta v. Rochiram Nagdeo, (1999) 4 SCC 243; f!.K
Vijayan v. Kamalakshi Amma and Ors., [1994) 4 SCC 53; K. Ethirajan (dead) E
by Lrs. v. Lakshmi and Ors., [2003] 10 SCC 578; Marwari Kumhar and Ors.
v. Bhagwapuri Guru Ganeshpuri and Anr., [2000) 6 SCC 735; Mridhavkrishna
and Anr. v. Chandra Bhaga and Ors., [1997) 2 SCC 203; Kanda Lakshmana
Bapuji v. Government ofA.P. and Ors., (2002] 3 SCC 258 and Most. Rev. P.MA.
Metropolitan and Ors. v. Moram Mar Marthonia and Anr., [1995) Supp 4 SCC
~~~~ F
1.3. The object of the 'Rule of constructive res judicata' is to compel
the parties to take all the grounds of attack or defence in one and the same
suit. [818-E]

Vide Haro v. JHAN Ara, [1973] 2 SCC 189: AIR (1973) SC 1406; G
Jaswant Singh v. Custodian of Evacuee Property, [1985) 3 SCC 648: AIR
(1985) SC 1096: [1985] Supp I SCR 331; Forward Construction Co. v.
Prabhat Manda!, (1986) I SCC 100: AIR (1986) SC 391: (1985) Supp 3 SCR
.. 766; Direct Recruit Class fl Engineering Officers Association v. State of
Maharashtra, (1990) 2 sec 715:AIR (1990) SC 1607 and Vijayan v. H
810 SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.

A Kama/akshi, [1994] 4 SCC 53: AIR (1994) SC 2145, relied on.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6597 of2005.

From the Judgment and Order dated 17.3.2003 of the Madhya Pradesh
High Court in S.A. No. 396 of 1998.
B
Niraj Sharma for the Appellant.

Amitabh Verma and Ashok Mathur for the Respondent.

The Judgment of the Court was delivered by
c C.K. THAKKER, J. Leave granted.

The present appeal is filed against the judgment and order passed by
the High Court of Madhya Pradesh at Jabalpur in Second Appeal No. 396' of
1998 by which the High Court confirmed the judgment and order passed by
D the Court of First Additional District Judge, Hoshangabad in Civil Regular
Appeal No. I-A of 1997, setting aside the judgment and decree passed by the
Court of First Civil Judge, Class II, Hoshangabad in Civil Suit No. 31-A of
1991.

To appreciate the controversy raised in this appeal, few relevant facts
E may be noted.
Ramadhar - appellant herein purchased a house bearing Municipal Ward
No. 80, Sheet No. 34 situate at Mohalla Gwaltoli in Hoshangabad (M.P) by
a registered sale-deed dated February 23, 1981 from one Hiralal Babula! for a
consideration of Rs. 12,000. In the said deed it was expressly mentioned that
F Hiralal was the absolute owner of the property and he had full rights to sell
the house. It was also stated that in future if any of his brothers or legal
representatives would make any claim or raise any dispute or the purchaser
would be dispossessed, the seller would pay compensation, damages and
costs to the buyer. It was the case of the appellant that Ganpat, brother of
G Hiralal and Bhagwandas (respondent herein) claimed that Hiralal did not have
the right to sell the house inasmuch as it was the ancestral property of their
family and was not self acquired property ofHiralal. According to the appellant,
both, Ganpat and Bhagwandas took forcible possession of some portion of
the house on the southern side of the property comprising of Dhalia (roofed
house) and adjoining Angana (open land). Gan pat also constructed Chhapri
H (thatched roof) thereon. The appellant, therefore, was constrained to file Civil
RAMADHAR Sl-IRIVAS v. BHAGWANDAS [THAKKER, J.] 811

Suit No. 40-A of 1982 in the Court of Civil Judge, Class II, Hoshangabad A
against Hiralal (vendor), Ganpat and Bhagwandas (respondent herein) for
possession and removal of unauthorized encroachment. A written statement
was filed by Hiralal (vendor) admitting the claim of the plaintiff. So far as
Ganpat and Bhagwandas are concerned, they filed joint written statement
contending that the property was joint family property and Hiralal had no
right to sell it to the plaintiff. The sale deed executed by Hiralal was, therefore, B
illegal, void and inoperative. The Trial Court framed necessary issues on the
basis of pleadings of the parties and held that Hiralal was absolute and full
owner of the property and he had right to sell it to the plaintiff. Accordingly,
the sale by Hiralal in favour of the plaintiff was held legal, valid and in
accordance with law. As to possession of defendant Nos. I and 2, the Court C
held that defendant Ganpat was found to be in possession of the suit land
but he could not produce any evidence to show as to how his possession
could be said to be lawful. Ganpat was, therefore, held to be in unlawful and
unauthorized possession of property and was ordered by the Court to
handover possession of Chhapri to the plaintiff. Thus, a decree was passed
against him. D

Regarding defendant Bhagwandas, the Court found that he was
occupying the property as a tenant and was paying rent of Rs.10 per month
to Hiralal. He had also constructed Chhapri and Dhalia. Bhagwandas was
paying rent to original owner Hiralal. Since plaintiff-Ramadhar purchased E
house from Hiralal, Bhagwandas became tenant of Ramadhar and was liable
to pay rent to the plaintiff, but Bhagwandas was not paying rent to him.
Bhagwandas, however, could not be said to be in unauthorized possession
or a 'trespasser' but was tenant. Hence, a suit in Civil Court by plaintiff-
Ramadhar against defendant-Bhagwandas was not maintainable. The suit was
accordingly dismissed against Bhagwandas. F
The Court stated;

Hiralal PW-1 has made statement that he had made Chhapri over
the suit accommodation in which Bhagwandas resided and gave him
rent of Rs. I0 per month, in the Chhapri made by Hiralal Bhagwandas G
lived. The Dhalia constructed thereon was used by Bhagwandas.
Bhagwandas paid rent Rs. 10 per month to Hiralal. Since he had
purchased house from Hiralal, thereafter Bhagwandas has not paid
rent of Dhalia. In this manner, from statement of plaintiff, it becomes
clear that Bhagwandas is tenant ofDhalia ofHiralal since the time for H
' .....
812 SUPREME COURT REPORTS (2005] SUPP. 4 S.C.R.

A which the house existed. The Dhalia has been sold to plaintiff by
Hiralal. Therefore, defendant Bhagwandas became tenant of the
plaintiff. In this manner defendant No. 2 Bhagwandas is tenant of
Ramadhar. Therefore, it cannot be accepted that possession of
defendant Bhagwandas is unauthorized encroachment.

B Being aggrieved by that part of the order by which the suit of the
plaintiff was dismissed against Bhagwandas, he preferred Regular Civil Appeal
No. 20-A of 1983 in the Court of Second Additional District Judge,
Hosha.ngabad but it was also dismissed on April 16, 1991 confirming the
decree passed by the Trial Court.

c In view of the fact that defendant-Bhagwandas was held to be tenant
of Hiralal and after the sale of property by Hiralal to the plaintiff, Bhagwandas
held to be tenant of the plaintiff, he initiated the present proceeding against
defendant-Bhagwandas by filing Civil Suit No. 31-A of 1991 in the Court of
First Civil Judge, Class 11, Hoshangabad for his eviction and for arrears of
D rent. In the said suit, it was the case of the appellant-plaintiff that the previous
suit filed by him was decided by the Trial Court wherein the defendant was
held to be tenant of Hiralal and after sale of property by Hiralal to the plaintiff, ,
tenant of the plaintiff. According to the plaintiff, he was entitled to possession
of the property in accordance to the provisions of M.P. Accommodation
Control Act, 1961 (hereinafter referred to as 'the Act'), inter alia on the
E grounds of (i) bona fide need of the plaintiff; (ii) non-payment of rent by the
defendant; (iii) denial of title by the defendant; (iv) damage caused to the
property by the defendant; and (v) need for reconstruction of property by the
plaintiff.

The defendant filed written statement and contended that the plaintiff
F was not the owner of the suit house, Dhalia and open space, Hiralal had no
right to sell the suit property to the plaintiff since the property was ancestral
property of Babulal common ancestor of defendant and vendor Hiralal. Hiralal
had inherited the property from his fore-fathers and defendant Bhagwandas,
his father Ganpat and other brothers as also other family members had right
G therein. Since Hiralal had no right to transfer the property, the plaintiff could
not get ownership right over the house. He also contended that Hiralal did
not give possession of the property to the plaintiff. The defendant asserted
that he was neither the tenant of Hiralal nor of the plaintiff and there was no
relationship of landlord and tenant between the plaintiff and the defendant
and plaintiff was not entitled to get decree of eviction against him.
H
RAMADHAR SHRlVAS v. BHAGWANDAS [THAKKER, J.) 813

On the basis of contentions raised by the parties, the Trial Court framed A
necessary issues. Considering the evidence adduced by the parties, the Court
held that in the earlier suit, it was decided by the Court that Hiralal was the
absolute owner of the property and defendants Ganpat and Bhagwandas had
no ownership right in the suit property. Therefore, when Hiralal sold the
property to plaintiff Ramadhar, the latter became full owner. As Bhagwandas B
was in possession as tenant of Hiralal, on sale of property to Ramadhar,
Bhagwandas became tenant of Ramadhar. There was thus relationship of
landlord and tenant between the plaintiff and the defendant. The Court also
held that the plaintiffs requirement was genuine and bona fide and he had
no other house in the City of Hoshangabad. It also held that defendant had
denied title of the plaintiff and on that ground also the defendant was liable C
to be evicted. Jn view of the said findings, the Trial Court decreed the suit
and directed the defendant to handover possession of the suit property to
the plaintiff along with payment of rent at the rate of Rs. I 0 per month from
the date of the suit till the date of the decree.

Being aggrieved by the decree passed by the Trial Court. the defendant D
preferred an appeal in the Court of the First Additional District Judge,
Hoshangabad contending that the suit filed against him was not maintainable
as there was no relationship of landlord and tenant between the plaintiff and
the defendant. The Trial Court, submitted the defendant, committed an error
of law in passing the decree and directing the defendant to handover E
possession of the suit property to the plaintiff. The lower Appellate Court
observed that two questions had arisen; firstly, whether the landlord-tenant
relationship had been established between the plaintiff and the defendant;
and secondly, whether the plaintiff required the suit property for genuine need
for residence? According to the lower Appellate Court, however, there was
no relationship of landlord and tenant between the plaintiff and the defendant F
and the suit was not maintainable. The Court relied on the fact that plaintiff-
Ramadhar had stated in his deposition that defendant Bhagwandas had not
paid any rent to him after he purchased the property from Hiralal. The defendant
refused to pay rent to him. According to the Court, in the earlier suit, what
was held by the Court was that since Hiralal was the owner of the property
and the defendant was paying rent of Rs. I 0 per month to him, when Hiralal G
sold the property to the plaintiff, the plaintiff became owner of the house and
Bhagwandas continued to remain tenant of the new owner-Ramadhar. In view
of the fact, however, that defendant Bhagwandas had categorically stated that
he was not the tenant of the property and was not paying any rent either to
Hiralal or to the plaintiff, the relationship of landlord and tenant had not been H
814 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A proved. In view of the said finding, the Appellate Court allowed the appeal
holding that the Trial Court had committed an error of law in passing the
decree against the defendant. The Appellate Court thus allowed the appeal
and dismissed the suit filed by the plaintiff.

Being aggrieved by the decree passed by the Appellate Court, the
B appellant filed Second Appeal in the High Court, but the High Court also
confirmed the order passed by the Appellate Court and dismissed the appeal.

Against that order, the appellant has approached this Court. Notice was
issued on August 29, 2003. Affidavits and further affidavits have been filed
by the parties.
c
We have heard learned counsel on both sides.

The learned counsel for the appellant vehemently contended that the
Appellate Court as well as the High Court had committed an error of law as
also of jurisdiction in dismissing the suit filed by the plaintiff. According to
D the counsel, in earlier proceedings, the ownership of the plaintiff over the suit
property was established. In that sui.t, the case of the appellant was that he
had become absolute owner of the property in the light of the sale deed
executed by Hiralal in his favour. In those proceedings, it was specifically
contended by defendant Bhagw1ndas that Hiralal was not the owner of the
E property and the house was a part and parcel of ancestral property and it
could not have been sold by Hiralal alone. The contention was expressly
negatived by the court and a finding was recorded that it was self-acquired
property of Hiralal. There was no interest of any other member in the said
property and sale of house by Hiralal 'in favour of plaintiff was legal, valid
and in accordance with law. The Court observed that defendant-Bhagwandas
F could not produce a:iy material whatsoever to show as to how he was
claiming the ownership right. The Court also recorded a finding that defendant-
Bhagwandas was a tenant of part of the property and was paying Rs. I0 per
month to Hiralal. Since Hiralal sold the property to the plaintiff, defendant-
Bhagwandas became tenant of new owner-Ramadhar. Defendant Bhagwandas
G did not challenge the said finding recorded by the Trial Court in that suit.
Since no order of eviction was passed against the defendant by Civil Court
in view of the finding that the defendant could not be held to be 'trespasser'
but tenant of the property, the suit against him was dismissed. The plaintiff
preferred an appeal which was also dismissed by the Appellate Court. It was,
therefore, open to the appellant to initiate present proceedings and accordingly
H a suit for possession was filed by the plaintiff against the defendant. According
RAM AD HAR SHRIV AS v. BHAGW ANDAS [THAKKER, J.] 815
to the counsel, it was not open to the defendant now to contend in the A
present proceedings that the suit property was joint family property and
Hiralal had no right to sell the property to the plaintiff. The issue as to
ownership had been finally and conclusively decided by Civil Court and it
operated res judicata and the defendant was bound by it. It was also submitted
by the counsel that since the plaintiff had been held to be absolute owner B
of the property, the defendant could not have denied his title and on that
ground also, the plaintiff was entitled to the possession of the property. It
was urged that if it was the case of the defendant that he was in lawful
possession in any capacity other than tenant, he 'ought' to have raised such
defence in the earlier proceedings. The finding recorded in earlier suit would
thus operate as constructive res judicata also and the defendant was bound C
by the said judgment. It was submitted that once the plaintiff was held to be
owner of the. property, he was entitled to possession and the Trial Court was
wholly justified in passing the decree in his favour. The Appellate Court and
the High Court ought not to have set aside the said decree. He, therefore,
· submitted that the appeal deserves to be allowed by setting aside the judgment D
and decree passed by the Appellate Court and the High Court and by
restoring the decree for possession passed by the Trial Court.

The learned counsel for the respondent, on the other hand, supported
the order passed by the two courts below. He submitted that when the
defendant was not tenant of the property, the Trial Court committed an error E
of law and of jurisdiction in passing the decree and courts below were right
in setting aside the said decree. He also submitted that the so-called finding
recorded by the Civil Court as to the status of defendant-Bhagwandas was
collateral and incidental in nature and would not operate as res judicata in
subsequent suit. He, therefore, prayed for the dismissal of the appeal.
F
Having heard learned counsel for the parties and having considered the
rival contentions, in our opinion, the appeal deserves to be allowed and the
judgment and decree passed by the Trial Court deserves to be restored by
setting aside the judgment and decree passed by the lower Appellate Court
as well as by the High Court. It is clear from the evidence adduced by the G
parties in the former suit as also the decree passed by the Trial Court in Civil
Suit No. 40-A of 1982 that Hiralal was the absolute owner of the suit property
who had sold the property to appellant-Ramadhar. The appellant, therefore,
had become full owner of the property. Jn the said suit, the respondent herein
was also joined as one of the defendants. The respondent-Bhagwandas in
that suit contended that the property was joint family property and Hiralal had H
816 SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.

A no right to dispose of that property since other family members had also
interest therein. The contention which was expressly taken was specifically
negatived by the Court and decree was passed in favour of the plaintiff.
Moreover, an order of eviction was also passed against defendant No. I
Ganpat as he was found to be in unauthorized occupation of the property.
B Keeping in view the evidence on record that Bhagwandas-present respondent-
defendant No.2 in that suit was paying Rs. 10 p.m. as rent to Hiralal, the Court
observed that he could not be held trespasser and no decree could be passed
by a Civil Court against him. The Court at the same time, observed that
defendant-Bhagwandas could not produce any evidence as to how he was
occupying the property as an owner. Since Hiralal was the owner of the
C property and defendant-Bhagwandas was occupying the property and paying
Rs. I 0 per month as rent to Hiralal, after the sale of property by Hiralal to
plaintiff, Bhagwandas became tenant of the plaintiff.

To us, therefore, it is clear that the ownership right of the plaintiff came
to be established by a competent court of law in earlier proceedjngs wherein
D certain specific findings of fact had been recorded that the property was not
joint family property but self-acquired property of Hiralal; Hiralal had sold the
said property to the plaintiff for Rs. 12,000 by a registered sale deed; defendant-
8hagwandas was paying rent of Rs. IO per month to Hiralal; and Bhagwandas
could not produce any evidence to show his propriety rights over the property.
E No decree could be passed against Bhagwandas as the suit was filed by the
plaintiff against the owner Hiralal, trespasser Ganpat and defendant-
Bhagwandas in a Civil Court. Since the defendant was not found to be
'trespasser' or in unauthorized occupation, the suit was dismissed against
him. In our orinion, therefore, it was not open to defendant-Bhagwandas to
put forward the claim in the present proceedings that Hiralal was not the
F absolute owner of the property and the property was joint family property
which Hiralal could not have sold to the appellant. It was also not open to
the defendant to deny the title of the plaintiff since in appropriate proceedings,
a finding had been recorded as to ownership of property and a decree had
been passed by a competent Civil Court holding the plaintiff to be the owner
G who had purchased it from its real owner Hiralal. The Trial Court, in our
opinion, was wholly justified in passing the decree in favour of the plaintiff
and against the defendant.

The learned counsel for the appellant is also right in contending that
the finding as to ownership of the plaintiff had attained 'finality' in the earlier
H proceedings in the decree passed a Civil Court. So far as the ownership rights
RAMADHAR SHRIVAS v. BHAGWANDAS [THAKKER, .I.) 817

of the plaintiff are concerned, they had not been challenged by defendant- A
Bhagwandas and hence that finding would operate as res judicata. In this
connection our attention has been invited by the learned counsel to the
following decisions;

Pawan Kumar Gupta v. Rochiram Nagdeo, [1999] 4 SCC 243;
B
P.K. Vijayan v. Kamalakshi Amma and Ors., [1994] 4 SCC 53;

K. Ethirajan (dead) by Lrs. v. Lakshmi and Ors., (2003] 10 SCC 578;
Marwari Kumhar and Ors. v. Bhagwanpuri Guru Ganeshpuri and Anr.,
[2000J 6 sec 735;
c
Madhavkrishna and Anr. v. Chandra Bhaga and Ors., [1997] 2 SCC
203;

Konda Lakshmana Bapuji v. Government ofA.P. and Ors., (2002] 3 SCC
258;and
D
Most Rev. P.MA. Metropolitan and Ors. v. Moran Mar Marthoma and
Anr, [ 1995] Supp 4 SCC 286.

In the above decisions, various aspects of the doctrine of res judicata
have been dealt with by this Court.
E
In Pawan Kumar Gupta, a suit filed by the plaintiff against the defendant
was dismissed by the Court but the Court negatived the contention of the
defendant that the plaintiff was not the real owner of the suit property. The
Court recorded a finding that the plaintiff was absolute owner. In a subsequent
suit by the plaintiff against the defendant, this Court held that an issue as
to the title of the property was 'directly and substantially' in issue between F
the parties in a former suit and decided in favour of the plaintiff. Such finding,
ruled this Court, would operate as res judicata in a subsequent suit against
the defendant.

The Court observed:
G
"The rule of res judicata incorporated in Section 11 of the Code of
Civil Procedure (CPC) prohibits the court from trying an issue which
"has been directly and substantially in issue in a former suit between
the same parties", and has been heard and finally decided by that
court. It is the decision on an issue, and not a mere finding on any H
818 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A incidental question to reach such decision, which operates as res
judicata. It is not correct to say that the party has no right of appeal
against such a decision. on an issue though the suit was ultimately
recorded as dismissed."

In our opinion, the learned counsel for the appellant is also right in
B submitting that the rule of constructive res judicata applies to the present
case. The expression 'matter in issue' under Section 11 of the Code of Civil
Procedure, 1908 connotes matter directly and substantially in issue actually
or constructively. A matter is actually in issue when it is in issue directly and
substantially and a competent court decides it on merits. A matter is
C constructively in issue when it 'might and ought' to have been made a
ground of defence or attack in the former suit. Explanation IV to Section 11
of the Code by a deeming provision lays down that any matter which 'might
and ought' to have been made a ground of defence or attack in the former
suit. but which has not been made a ground of defence or attack, shall be
deemed to have been a matter directly and substantially in issue in such suit.
D
The principle underlying Explanation IV is that where the parties have
had an opportunity of controverting a matter. that should be taken to be the
same thing as if the matter had been actually controverted and decided. The
object of Explanation IV is to compel the plaintiff or the defendant to take all
the grounds of attack or defence in one and the same suit. [Vide Horo v.
E JahanAra, (1973] 2 SCC 189 192: AIR (1973) SC 1406 (1409); Jaswant Singh
v. Custodian of Evacuee Property, [1985] 3 SCC 648: AIR (1985) SC 1096:
(1985) Supp I SCR 331; Forward Construction Co. v. Prabhat Manda/, (1986)
I SCC JOO: AIR (1986) SC 391 : [1985] Supp 3 SCR 766; Direct Recruits Class
II Engineering Officers' Association v. State of Maharashtra, [ 1990] 2 SCC
f 715: AIR (1990) SC 1607 and Vijayan v. Kamalakshi, [1994] 4 SCC 53: AIR
(1994) SC 2145.

In the case on hand, it is clear that in the earlier suit, the Court had
recorded a clear finding that defendant-Bhagwandas was neither the owner
of the property nor he could show any right as to how he was occupying
G such property except as a tenant of Hiralal. If Bhagwandas was claiming to
be in lawfu 1 possession in any capacity other than a tenant, he 'ought' to
have put forward such claim as a ground of defence in those proceedings.
He ought to have put forward such claim under Explanation IV to Section 11
of the Code but he had failed to do so. The doctrine of constructive res
judicata engrafted in Explanation IV to Section 11 of the Code thus applies
H
RAMADHAR SHRIV AS v. BHAGW AND AS [THAKKER, J.] 819
to the facts of the case and the defendant in the present suit cannot take a A ,
contention which ought to have been taken by him in the previous suit and
was not taken by him. Explanation IV to Section 11 of the Code is clearly
attracted and defendant-Bhagwandas can be prevented from taking such
contention in the present proceedings.

There is one more reason also as to why the Trial Court was right in B
passing the decree against the defendant. As is clear from the record, even
after the disposal of previous proceeding in civil suit as well as in appeal qua
defendant-Bhagwandas, the plaintiff-Ramadhar issued a notice to the defendant
on June 03, 1991, by registered AD. In the said notice, the plaintiff through
his advocate asked the defendant-Bhagwandas to handover possession of C
Dhalia and to pay arrears of rent stating therein that the plaintiff had become
owner of suit property as he had purchased the property by a registered sale
deed dated February 23, 1981 from Hiralal and he was occ:.ipying it as owner
of the property. It was also stated that though it was the case of the plaintiff
in earlier suit that defendant-Bhagwandas and his father Ganpat had illegally
encroached upon the land, the Court ofFirst Civil Judge, Class II, Hoshangabad D
held in the judgment dated September 2, 1983 that defendant-Bhagwandas
was tenant of suit Dhalia for a monthly rent of Rs. 10 and in view of the said
finding, no decree for possession was passed in favour of the plaintiff. The
father of the defendant, however, was found to be in illegal possession and
accordingly decree was passed against him. The notice further stated that in E
spite of the decree passed by the Trial Court and confirmed by the lower
Appellate Court, the defendant had not paid rent to the plaintiff and he was
in arrears of rent and was liable to eviction under Section 12 of the Act. It
was also stated that the defendant had denied title of the landlord and was
liable to be evicted on that count as well. Moreover, the defendant had
damaged the property and got pits dug. The plaintiff wanted old construction F
to be demolished for making new construction and it was not possible without
obtaining the possession of the portion occupied by the defendant and for
that reason also, the landlord required the possession of the property from
the defendant. It may be stated here that according to the plaintiff, the
defendant neither replied to the notice nor surrendered possession of the
property. In view of the said fact also, the Trial Court was right in proceeding G
to decide the case on merits and in passing the decree in favour of the
plaintiff.

So far as the findings recorded by the Trial Court for passing a decree
for possession in favour of the plaintiff are concerned, they have neither been H
820 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

., A disturbed nor set aside by the lower Appellate Court nor by the High Court.
The plaintiff is, therefore, entitled to a decree for possession.

For the foregoing reasons, in our opinion, the appeal deserves to be
allowed and is accordingly allowed. The decree and order passed by lower
Appellate Court and confirmed by the High Court are set aside and the decree
B for possession passed by the Trial Court is restored. Respondent-Bhagwandas
is granted four month's time to vacate the premises subject to his filing usual
undertaking within four weeks from today. In the facts and circumstances of
the case, there shall be no order as to costs.

B.K. Appeal allowed.
c