Matter in former suit must be alleged by one party & either denied/admitted by other, for applying principle of res judicata

In Union Of India & Anr vs S. Narasimhulu Naidu (dead) Through Lrs. And Ors., the questions are required to be decided in the appeals was whether the order passed in the first suit filed by the plaintiffs as affirmed by the High Court operates as res judicata? 

In the first suit, the father of the applicants had not filed any counter claim to assert title or possession over the land in question. The land admeasuring 4971.5 sq. yards was a schedule property and the subject matter of the first suit. The issue no. 1 in the first suit was in respect of the possession of the plaintiffs and their predecessor-in-interest over the suit land within 12 years prior to the suit. Therefore, the rights of the plaintiffs were examined in respect of such suit land measuring 4971.5 sq. yards alone, although, to return the finding on possession and title, possession of the father of the applicants over the land purchased by the Plaintiff was clubbed together on the basis of patta claimed to be granted to Shaik Ahmed, though not produced or proved on record. 

In the second suit filed by the applicants, the entire basis of suit was the findings returned in the first suit. There is no independent evidence produced in respect of purchase of land by Shaik Ahmed and the legality or validity of Patta issued to him. Although, applicants have asserted that they have been visiting the land in question to verify their possession but apart from such plea, there is no evidence that there was any covert and overt act on the part of the plaintiffs to assert possession over the land in question.

The plea of res judicata is generally raised against the plaintiffs who would be the applicants before the Tribunal. This Court in a judgment reported as Alka Gupta v. Narender Kumar Gupta (2010) 10 SCC 141 held that the plea of res judicata is a restraint on the right of a plaintiff to have an adjudication of his claim. This Court has culled down the essential requirements to be fulfilled to apply the bar of res judicata to any suit or issue.

The issue can be examined from another angle as to whether the plea of res judicata can be raised by the applicants against their co-defendant in the first suit. In the first suit, the defendant had the opportunity to raise a claim in respect of land measuring 7128.5 sq. yards. However, no such claim was raised. In view of Section 11, Explanation IV CPC, the applicants might and ought to have made grounds of defence in the former suit to claim possession of the land measuring 7128.5 sq. yards. The consequence would be that failure to raise such defence or counter claim would be deemed to be constructive res judicata in terms of Explanation IV of Section 11 CPC. Reference may be made to judgment of this Court reported as Ramadhar Shrivas v. Bhagwandas (2005) 13 SCC 1.   This court was examining a situation where in a suit for possession, the defendant Bhagwandas was found to be the tenant of the original owner Hiralal and after a subsequent purchase, he had become tenant of Ramadhar. The first suit was dismissed on the ground that suit for possession was not maintainable against Bhagwandas being tenant. In another suit filed by the purchaser, the defendant denied the title of plaintiff, though such was not the plea in the first suit.

The issue as to whether there can be res judicata between co- defendants was first examined by the Privy Council in a judgment reported as Munni Bibi (since deceased) & Anr. v. Tirloki Nath & Ors. AIR 1931 PC 114 . The three principles of res judicata as between co-defendants were delineated as: (1) There must be a conflict of interest between the defendants; (2) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims; (3) the question between the defendants must have been finally decided. This test too is not satisfied as in order to grant relief of possession to the plaintiffs in the first suit, it was not necessary to decide the issue of the remaining land between the father of the applicants and the appellants. The said principle was reiterated by this Court in a judgment reported as Mahboob Sahab v. Syed Ismail and Others (1995) 3 SCC 693.

Though the first suit is between the same parties, but the subject matter is not the same. For res judicata to apply, the matter in the former suit must have been alleged by one party and either denied or admitted, expressly or impliedly by the other. Since the issue in the suit was restricted to 4971.5 sq. yards, the decree would be binding qua to that extent only. The issue cannot be said to be barred by constructive res judicata as per Explanation IV as it applies to the plaintiff in a later suit. The appellants have denied the claim of the plaintiffs in the first suit to the extent that it was the subject matter of that suit alone. Therefore, the decree in the first suit will not operate as res judicata in the subsequent matters.