WILLIAMSversusLOURDUSAMY & ANR.

                           [2008] 6 S.C.R. 929


                              WILLIAMS                                A
                                   v.
                        LOURDUSAMY & ANR.
                (Civil Appeal Nos. 2894-2895 of 2008)
                            APRIL 24, 2008
                                                                      B
              [S.B. SINHA AND V.S. SIRPURKAR, JJ.]

            Code of Civil Procedure, 1908 - s. 11 -Res-judicata -
      Suit for permanent injunction - On the ground that the plaintiff
      was in possession of suit land by virtue of oral agreement of c
      sale - Vendor not made party to the suit - Suit decreed -
      Subsequent suit by judgment debtor for declaration of title,
      decreed- Upheld in first appeal- High Court in second appeal
      holding the subsequent appeal by the judgment debtor barred
      by res-judicata - Suit for specific performance of contract by
                                                                        D
      decree holder also dismissed upto High Court - On appeal
...   held: Principle of res judicata not attracted to the facts of the
      present case - Owner of the property from whom the parties
      claiming their title and interest was not made party in previous
      suit - Issues framed in subsequent suits were not subject of
      adjudication in the former suit - High Court posed unto itself E
      a wrong question.
            In respect of the suit property, respondent No. 1 filed
      a suit for permanent injunction against the appellant
      claiming himself to be the owner of the land, by virtue of F
 .    oral agreement of sale by and between himself and
      respondent No.2. However respondent No. 2 was not
      impleaded as party. Appellant contested the suit on the
      ground that he had got the right, title and interest by
      reason of a registered sale deed from respondent No. 2. G
      Trial judge framed the issues which was only in respect
      of first respondent's possession of the land. On that issue
 _,   the suit was decreed.
           Thereafter appellant filed a suit for declaration of title
                                   929                                H
    930       SUPREME COURT REPORTS               [2008] 6 S.C.R.


A and recovery of possession impleading both the
  respondents as parties. First respondent also filed suit
  for specific performance of contract against the appellant
  as also against respondent No. 2. Trial Court decreed the
  suit of the appellant while dismissing that filed by the
B respondent No.1 . Appeals against both the judgments
  were dismissed by first appellate court. In second appeal,
  High Court held that as the possession of the property
  had been delivered on the basis of purported oral
  agreement, the subsequent suit was barred by
c applicability of principle of res-judicata. Hence the present
  appeals.
          Allowing the appeals, the Court
        HELD: 1. The principle of res-judicata is not attracted
  to the facts of the present case. The principles of res-
0
  judicata although provide for a salutary principle that no
  person shall be harassed again and again, have its own
  limitations. In the previous suit, the respondent No. 2 was
  not impleaded as a party. In his absence therefore, the
  issue as to whether respondent No. 2 had entered into an
E oral agreement of sale or not could not have been
  adjudicated upon. The said Court had no jurisdiction in
  that behalf. If that was decided in the said suit, the findings
  would have been nullities. Such an issue was not framed.
  [Paras 11, 12 and 14] [935-A, B, C; 937-D, E]
F
        Sajjadanashin Sayed MD. 8.E. EDR. (D) by LRs. vs.           •
    Musa Dadabhai Ummer and Ors. 2000 (3) SCC 350 - relied
    on.
       Chief Justice of Andhra Pradesh and Anr etc. vs. L. V.A.
G Oikshitulu and Ors. AIR 1979 SC 193; Hasham Abbas Sayyad
  vs. Usman Abbas Sayyad and Ors. 2007 (2) SCC 355 -
    referred to.
          2.1 In a suit for permanent injunction, the Court had
H rightly proceeded on the basis that on the date of the
              WILLIAMS v. LOURDUSAMY & ANR.                 931

•     institution of the suit, the first respondent was in A
      possession of the disputed land or not. It was not required
      to enter into any other question. The question as to
      whether the respondent had been put in possession in
      terms of an oral agreement of sale was not in issue.
,,    Respondent No. 2 was not impleaded as a party. A decree B
      for specific performance of contract was not prayed for
      in the said suit. Neither any averment was made, nor in
      law the same could be made that he had been put in
      possession by way of a part performance of contract as
      envisaged under Section 53A of the Transfer of Property c
      Act. [Paras 5 and 12] [935-D; 933-A, B]
           2.2 It is one thing to say that a person is in possession
      of the land in suit and it is another thing to say that he has
      a right to possess pursuant to or in furtherance of an
      agreement for sale which would not only bind the vendor D
;..   but also bind the subsequent predecessor. Had such an
      issue been framed, the appellant or the respondent No. 2
      could have contended that Section 53A of the Transfer of
      Property Act had no application. For application of Section
      53A an agreement has to be entered into in writing. The E
      said Section provides for application of an equitable
      doctrine of part performance. Requisite ingredients
      therefor must be pleaded and proved. [Para 13] (935-E, F,
      G]
           3. A competent Court of law has dismissed the suit F
      for specific performance of contract filed by the first
      respondent opining that the respondent had failed to
      prove the existence of an oral agreement. If the suit for
      specific performance of contract had not been decreed
      in favour of the first respondent, the question of his G
      continuing to remain in possession in part performance
  ,   of contract would not arise. [Para 14] [935-G, H; 936-A]
           CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
      2894-2895 of 2008.
                                                                  H
    932         SUPREME COURT REPORTS                 [2008] 6 S.C.R.

                                                                         •
A        From the final Judgment and Order dated 19.8.2002 of
    the High Court of Judicature at Madras in S.A. No. 1759-1760
    of 1991.
         V. Prabhakar, Ramjee Prasad and M.K.D. Namboodiri for
    the Appellant.
B                                                                        ,.
          The Judgment of the Court was delivered by
          S.B. SINHA, J. 1. Leave granted.
          2. Whether principle of res-judicata is applicable to the
c   facts and circumstances of this case, is the question involved
    herein.
         The basic fact of the matter is not in dispute. Second
  respondent was the owner of the properties. He by reason of a
  registered Deed of Sale dated 25.11.1987 transferred his right,
D title and interest in favour of the appellant.
        3. First respondent, however, filed a suit against the
  appellant herein in the Court of District Munsif, Thiruvaiyaru
  praying for a decree for permanent injunction alleging that the
  land in suit admeasuring 3 cents was the subject matter of an
E oral agreement of sale by and between himself and the second
  respondent herein. It was contended that the second respondent
  had been in possession of the said land in terms of a patta
  executed under the Kudiyiruppu Act being Act 40 of 1971.

F         The contention of the appellant, on the other hand, was
    that he had been put in possession of the suit land by the second
    re1pondent in terms of the aforementioned deed of sale dated
    25.11.1987.
        4. The learned Trial Judge in the said suit, inter alia framed
G the following issues.
          "i)   Whether on the date of the suit the plaintiff was in
                possession of the suit property?                         •

          ii)   Whethtr the plaintiff i§ entitled to the relief of
                ptrm1nent injunction I i prayed for?
                 WILLIAMS v. LOURDUSAMY & ANR.                        933
                         [S.B. SINHA, J.]

          iii)   To what else (sic) relief, the plaintiff is entitled to?"   A
           5. The question as to whether the respondent had been
     put in possession in terms of an oral agreement of sale was not
     in issue. Respondent No. 2 as noticed hereinbefore was not
     impleaded as a party. A decree for specific performance of
.,   contract was not prayed for in the said suit. Neither any averment      B
     was made nor in law the same could be made that he had been
     put in possession by way of a part performance of contract as
     envisaged under Section 53A of the Transfer of Property Act.

          6. The learned Trial Judge, however, held that the first           c
     respondent was in possession of the land in suit as on the date
     of the institution of the suit and thus granted a decree for
     permanent injunction.
           7. Appellant thereafter filed a suit for declaration of title
     and recovery of possession, which was marked as O.S. No.                D
     182 of 1989. Both the respondents herein were impleaded as
     parties therein. First respondent herein also filed a suit for
     specific performance of contract against the appellant as also
     the respondent No. 2. The said suit was registered as O.S. No.
     93 of 1990.                        .                                    E

           Both O.S. No. 1826f1989 and O.S. No. 93of1990 were
     consolidated. By a judgment and order dated 7.11.1990, the
     learned Trial Judge while dismissing the aforementioned suit
     for specific performance of contract filed by the first respondent
     allowed the suit of the appellant for declaration of his title and      F
     confirmation of possession.
           8. Two appeals were preferred thereagainst by the first
     respondent which by reason of a judgment and order dated
     28.8.1991 were dismissed by District Judge, Thanjavur (West). G
     First respondent preferred two second appeals before the High
     Court.
           The High Court opined that the only substantial question
     of law raised by the appellant before it (respondent No. 1 herein)
     was the applicability of the principles of Res-Judicata.                H
    934        SUPREME COURT REPORTS                         [2008] 6 S.C.R.
                                                                               f

A         Relying upon some stray observations made by the
    learned Trial Judge in the said O.S. No. 402 of 1987, it was
    held that as possession of the property had been delivered on
    the basis of a purported oral agreement of sale, the principles
    of res-judicata would be attracted.
B      9. Mr. V. Prabhakar, the learned counsel appearing on
  behalf of the appellant would submit that as no issue was framed
  in regard to the purported oral agreement of sale by and
  between respondent No. 1 and 2 nor any specific finding having
  been arrived at by the learned Trial Judge in the said O.S. No.
C 402of1987, the impugned judgment is wholly unsustainable.
          10. Section 11 of the Code of Civil Procedure provides
    that the Court will have no jurisdiction to try a suit or issue in
    which the matter directly and substantially in issue had been in
    issue in a former suit between the same parties.
0
          Explanation 8 appended thereto reads as under:
          "Section 11. Res judicata - No Court shall try any suit or
          issue in which the matter directly and substantially in issue
          has been directly and substantially in issue in a former suit
E         between the same parties, or 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."
F
          Explanation I.    *****           *****             *****
          Explanation II    *****           *****             *****
                           *******************************

G         Explanation VIII. -An issue heard and finally decided by
          a court of limited jurisdiction, competent to decide such
          issue, shall operate as res judicata in a subsequent suit,           ..
          notwithstanding that such court of limited jurisdiction was
          not competent to try such subsequent suit or the suit in
H         which such issue has been subsequently raised."
                WILLIAMS v. LOURDUSAMY & ANR.                        935
                        [S.B. SINHA, J.]
.
           11. The principles of res-judicata although provide for a A
      salutary principle that no person shall be harassed again and
      again, have its own limitations. In O.S. No. 402 of 1987, the
      respondent No. 2 was not impleaded as a party. In his absence
      therefore, the issue as to whether respondent No. 2 had entered
...   into an oral agreement of sale or not could not have been B
      adjudicated upon. The said Court had no jurisdiction in that
      behalf. If that was decided in the said suit, the findings would
      have been nullities.
           [See Chief Justice of Andhra Pradesh and another etc.
      Vs. L. V.A. Dikshitulu and others AIR 1979 SC 193 at 198 and         c
      Hasham Abbas Sayyad Vs. Usman Abbas Sayyad and Ors.
      (2001) 2 sec 355]
              12. As a matter of fact even such an issue was notfr.amed.
      The High Court, therefore, in our opinion posed unto itself a
                                                                          D
      wrong question. In a suit for permanent injunction, th.e Court had
      rightly proceeded on the basis that on the date of the institution
      of the suit, the first respondent was in possession of the disputed
      land or not. It was not required to enter into any other question.
      It, in fact, did not.
                                                                            E
            13. It is one thing to say that a person is in possession of
      the land in suit and it is another thing to say that he has a right to
      possess pursuant to or in furtherance of an agreement for sale
      which would not only bind the vendor but also bind the
      subsequent predecessor. Had such an issue been framed, the F
      appellant or the respondent No. 2 could have contended that
      Section 53 A of the Transfer of Property Act had no application.
      For application of Section 53A of the Act, an agreement has to
      be entered into in writing. The said section provides for
      applicatior:i of an equitable doctrine of part performance.
                                                                             G
      Requisite ingredients therefor must be pleaded and proved.
.            14. A competent Court of law has dismissed the suit for
      specific performance of contract filed by the first respondent
      opinir:ig that the respondent had failed to prove the existence of
      ari oral agreement. If the suit for specific performance of contract H
    936        SUPREME COURT REPORTS                      [2008] 6 S.C.R.


A   had not been decreed in favour of the first respondent, the
    question of his continuing to remain in possession in part
    performance of contract would not arise.

           Appellant herein filed a suit for declaration of title and
    recovery of possession. He proceeded on the basis that the
B   first respondent was in possession.

         The learned Trial Judge and the first Appellate Court, in
    our opinion, have rightly held that the principle of res-judicata
    was not attracted in this case.
C       In Sajjadanashin Sayed MD. B.E. EDR. (D) by LRs. Vs.
  Musa Dadabhai Ummer and Others [(2000) 3 SCC 350] this
  Court considered the cases where in spite of specific issue
  and an adverse finding in an earlier suit, the same was not
  treated as res-judicata being purely incidental or auxiliary or
D collateral to the main issue stating :
          "24. Before parting with this point, we would like to refer
          to two more rulings. In Sulochana Amma v. Narayanan
          Nair this Court held that a finding as to title given in an
          earlier injunction suit would be res judicata in a subsequent
E         suit on title. On the other hand, the Madras High Court, in
          Vanagiri             Sri        Selliamman              Ayyanar
          Uthirasomasundareswarar Temple v. Rajanga Asari held
          (see para 8 therein) that the previous suit was only for
          injunction relating to the crops. Maybe, the question of title
F         was decided, though not raised in the plaint. In the latter
          suit on title, the finding in the earlier suit on title would not
          be res judicata as the earlier suit was concerned only with
          a possessory right. These two decisions, in our opinion,
          cannot be treated as being contrary to each other but
G         should be understood in the context of the tests referred
          to above. Each of them can perhaps be treated as correct
          if they are understood in the light of the tests stated above.
          In the first case decided by this Court, it is to be assumed
          that the tests above-referred to were satisfied for holding
H         that the finding as to possession was substantially rested
         WILLIAMS v. LOURDUSAMY & ANR.                         937
                 [S.B. SINHA, J.]

     on title upon which a finding was felt necessary and in the      A
     latter case decided by the Madras High Court, it mu.st be
     assumed that the tests were not satisfied. As stated in
     Mui/a, it all depends on the facts of each case and whether
     the finding as to title was treated as necessary for grant
     of an injunction in the earlier suit and was also the            B
     substantive basis for grant of injunction. In this context, we
     may refer to Corpus Juris Secundum (Vol. 50, para 735,
     p. 229) where a similar aspect in regard to findings on
     possession and incidental findings on title were dealt with.
      It is stated:
                                                                      c
     "Where title to property is the basis of the right of
     possession, a.decision on the question of possession is
     res judicata on the question of title to the extent that
     adjudication of title was essential to the judgment; but
     where the question of the right to possession was the only       D
     issue actually or necessarily involved, the judgment is not
     conclusive on the question of ownership or title."
      Following the principle of law as enunciated in the
aforementioned decision, we are of the opinion that the principle
of res-judicata is not attracted to the facts of the case.            E
     15. For the reasons aforementioned, the impugned
judgment cannot be sustained which is set aside accordingly.
Appeal is allowed. There shall, however, be no order as to costs.
K.K.T.                                          Appeals allowed       F