No Res Judicata on a Finding on Title – Saji Koduvath Associates

No Res Judicata on Finding on Title in an Injunction Suit

Taken from: Res Judicata and Constructive Res Judicata

Saji Koduvath, Advocate, Kottayam.

No Res judicata, where –

Decision by fraud
Dismissal in limine
Suit was premature
Pure question of law
Compromise decree
Want of jurisdiction
Habeas corpus cases
Dismissal on ‘limitation’
New laws bring changes
Public interest litigation
Decision not on the merits,
Dismissal for want of notice
Suit was not properly framed,
Dismissal on technical ground
Default of plaintiffs appearance,
Decision by an incompetent court
Cases where re-litigation is needed
Misjoinder or non-joinder of parties
Grounds not taken up by appeal court
Findings on the Title in an injunction suit.
Dismissed in limine without a Speaking Order
Intermediate reliefs in interlocutory applications.
Findings not Necessary (for supporting decree)
Taxation cases. Liability to pay tax each year differs.
Lower Court findings where appeal decree was passed
Former decision was too perverse (no proper reasoning)
Adverse findings against one who got a favorable decree
Different causes of action, as in an injunction suit or in an eviction suit

Other Settled Position: No Res Judicata, When

Issue not decided/adjudicated.
Dismissal of earlier suit for res judicata.
Dismissal of earlier suit for insufficient court fees.
If the ultimate decision was that the suit was not maintainable.
Adverse findings against one, in favour of whom the suit was ultimately decided.
Findings on several grounds. In the appeal, only one ground was considered. Res judicata on that one ground alone.

What is Res Judicata?

‘Res’, in Latin, means a thing or matter; and ‘Judicata’ means decided or judged.

Thus, Res Judicata applies when the ‘matter is decided’.

It is based on the public policy of finality and conclusiveness of judicial decisions, and private interest of all persons sued; that is, one should not be tried twice for the same cause or a matter that has been directly and substantially in issue in an earlier suit. Sec. 11 of the Code of Civil Procedure, 1908, elucidates this principle.

POSSESSION is a Substantive Right Protected in Indian Law

Saji Koduvath, Advocate, Kottayam.

Introspection

Divergent views exist as to injunction against “true owner”.
- One view is that no injunction can be passed in a suit filed by the person in unlawful possession (against the true owner).
  - See: Prahladji Chenaji v. Maniben Jagmalbhai, 2022 SCC OnLine SC 258 (Two Judge Bench).
- The other view is that a trespasser also is entitled for injunction (even against the true owner), for, he cannot be evicted otherwise than on “due process of law” (by the true owner).
  - See: Rame Gowda v. M. Varadappa Naidu, 2004-1 SCC 769 (Three Judge Bench).
Legal principles have to be evolved and an authoritative judicial pronouncement has to be penned-down taking note of conflicting views on this subject and laying down cogent and rationale reasonings.
- See Blog: Kesar Bai v. Genda Lal – No Injunction, if Plaintiffs’s Possession Found Unlawful.

Introduction.

The law as to ‘protection of possession’ by courts in India can be summarised as under:

Possession by itself is a substantive right recognised by law. It is heritable and transferable.
It is trite law that courts protect settled possession.
Generally speaking, injunction is a possessory remedy.
But, an injunction cannot be issued against a true owner or title holder and in favour of a trespasser or a person in unlawful possession.

Two Essential Elements of Possession

Sir Thomas Erkine Holland, in his treatise, ‘The Element of Jurisprudence’ pointed out that the concept of possession has two essential elements – corpus and animus. (Quoted in: Kanti Lal vs Smt. Shanti Devi, AIR 1997 Raj 230).

‘Possession Follows Title’ and ‘Title Follows Possession’

The legal principles, ‘Possession Follows Title’ and ‘Title Follows Possession’, are Rules of Evidence. It is recognised in S. 110 and 114 of the Indian Evidence Act. These principles are applied in cases where there are no sufficient and independent evidence to prove possession or title, as the case may be.

Read Blog: When ‘Possession Follows Title’; ‘Title Follows Possession’?

Section 110 of the Evidence Act

Section 110 of the Evidence Act, 1872, reads as under:

“110. Burden of proof as to ownership.—When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.”

Section 110 deals with the burden of proof as to ownership. When a dispute arises as to whether a person in possession of anything is its owner, the burden of proving that he is not its owner is on the person who avers that he is not the owner. Section 110 is based on the principle that possession itself may raise a presumption of title. This applies when the facts disclose no title in either of the disputants, and possession alone decides. That is, presumption is invoked only when the facts as to title are not known.

M. Siddiq v. Mahant Suresh Das (Ayodhya Case), 2020-1 SCC 1;
State of A.P. v. Star Bone Mill & Fertiliser Company, (2013) 9 SCC 319;
Chief Conservator of Forests v. Collectors, AIR 2003 SC 1805).

The Apex Court, in M. Siddiq v. Mahant Suresh Das (Ayodhya Case), relied on Nair Service Society v. Fr. KC Alexander, AIR 1968 SC 1165, wherein it was observed that when no title in either of the disputants, ‘possession alone decides’.

Sec. 110 is Based on ‘Ownership‘; and NOT on ‘Title‘

Under S. 110, ownership is presumed on the proof of possession. It ‘follows from well settled principle of law that normally, unless contrary is established, title always follows possession’ (Chuharmal v. Commissioner of Income Tax, M P, AIR 1988 SC 1384; 1988 3 SCC 588).

Though Sec. 110 is, generally, said to be based on the principle ‘Title Follows Possession’, what is decisively articulated in this section is ‘ownership‘; and not ‘title‘. That is, in law, ownership alone can be presumed; and not title. Title is the legal and authoritative expression of ownership; or, it is the legal recognition of a right.

M. Siddiq v. Mahant Suresh Das (Ayodhya Case), 2020-1 SCC 1, lays down (paras 784 and 785) the following:

For Section 110 to be attracted, there must be a dispute as to ownership of anything.
Section 110 deals with the burden of proof.
The ‘thing’ must be in possession of one individual.
That individual is presumed to be the owner (on the principle that ‘title follows possession’. That is, possession in and of itself may raise a presumption of title.)
Section 110 applies when the facts disclose no title in either of the disputants in which case, possession alone decides (because, presumption cannot be invoked when the facts are known).
The law casts the burden of disproving ownership on that individual in the person who affirms that the individual in possession is not the owner.

Section 114 of the Evidence Act

S. 114, Evidence Act, expressly permits the court to ‘presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case’. Therefore, by virtue of Sec. 114, both the presumptions, on title and possession, can be invoked; that is,

(i) possession can be presumed on the basis of title (possession follows title), and
(ii) title/ownership can be presumed on the basis of possession (title follows possession).

When ‘Possession Follows Title‘, Invoked

In Jones v. Chopman, (1849) 2 Ex. 803: 18 LJ Ex. 456: 76 PR 794; Maule, J, expounded the doctrine ‘Possession Follows Title’ as under:

“If there are two persons in a field, each asserting that the field is his, and each doing some act in the assertion of the right of possession, and if the question is, which of these two is in actual possession, I answer, the person who has the title is in actual possession and the other person is a trespasser. In such a case who is in possession is to be determined by the fact of the title and having the same apparent actual possession; The question as to which of the two really is in possession is determined by the fact of the possession; following the title, that is by the law, which makes it follow the title.” (Mitra quoted it in “Law of Possession and Ownership of Property”, as pointed out in Indore Development Authority vs. Manoharlal, (2020) 8 SCC 129)

In Indore Development Authority vs. Manoharlal, (2020) 8 SCC 129, Arun Misra, J. pointed out as to possession as under:

“247. The concept of possession is complex one. It comprises the right to possess and to exclude others, essential is animus possidendi. Possession depends upon the character of the thing which is possessed. If the land is not capable of any use, mere non-user of it does not lead to the inference that the owner is not in possession. The established principle is that the possession follows title. Possession comprises of the control over the property. The element of possession is the physical control or the power over the object and intention or will to exercise the power. Corpus and animus are both necessary and have to co-exist.”

Arun Misra, J. held further:

“251. A person with title is considered to be in actual possession. The other person is a trespasser. The possession in law follows the right to possess as held in Kynoch Limited v. Rowlands, (1912) 1Ch 527. Ordinarily, the owner of the property is presumed to be in possession and presumption as to possession is in his favour.”

Injunction Suit- Need Not Venture on Title

In Iqbal Basith v. N. Subbalakshmi, (2021) 2 SCC 718, the appellants were seeking the relief of permanent injunction only. Their title to the suit property was not disputed by the respondents. The two reports of the Pleader Commissioner also confirmed the possessory title of the appellants along with property tax registers and municipal tax receipts. The appellants had more than sufficiently established their lawful possession of the suit property. In this situation our Apex Court held as under:

“15. The conclusion by the courts below that the appellants had failed to establish title and therefore could not be said to be in lawful possession is therefore held to be perverse and unsustainable. Similarly, the conclusion that the identity of the suit property was not established is also held to be perverse in view of letter dated 16.04.1956 from the municipality, referred to herein above. The contention of the respondents feebly seeking to question the title of the appellants was rejected holding that they had nothing to do with the suit schedule property and that their conduct was questionable. Yet the appellants were wrongly denied the relief of permanent injunction. In our considered opinion the Trial Court and the High Court both posed unto themselves the wrong question venturing to decide the title of the appellants, and arrived at an erroneous conclusion.”

Settled Possession Vs. Rights of True Owner

When the relief of injunction or possession sought for in a suit is negated, and the title of the defendant as the owner is upheld, can the defendant recover the property without instituting a (second) suit, i.e., otherwise than on “due process of law“?

Earlier consistent view (See: Aarti v. Aruna Gautham 2015-1 RCR Civil – 160: SC) was that the true owner was not legally entitled to eject the trespasser by force (otherwise than on due process of law), especially when the trespasser is in settled possession.
Present view: In Prahladji Chenaji v. Maniben Jagmalbhai: 2022-2 RCR (Civil) 395; 2022 SCC OnLine SC 258 (Followed in: Kesar Bai v. Genda Lal, 2022-10 SCC 217) it is held that the ‘due process’ or ‘due course’ condition was satisfied the moment the rights of the parties were adjudicated upon (in the first round), and therefore the possession of the plaintiff is not lawful or ‘rightful‘.

It is held in Prahladji Chenaji as under:

“Where once a suit is held not maintainable, no relief of injunction can be granted. Injunction may be granted even against the true owner of the property, only when the person seeking the relief is in lawful possession “
Note: Kesar Bai v. Genda Lal, 2022-10 SCC 217 (M.R. Shah, Sudhanshu Dhulia, JJ.) calls for reading along with Prahladji Chenaji v. Maniben Jagmalbhai: 2022-2 RCR (Civil) 395; 2022 SCC OnLine SC 258 (M.R. Shah, B.V. Nagarathna, JJ.).

View Prevailed in India – Courts Protect Settled Possession

Possession by itself is a substantive right recognised by law.

Nair Service Society Ltd. v. K.C Alexander, AIR 1968 SC 1165,
Kuttan Narayanan v. Thomman Mathayi, AIR 1966 Ker 179;
Phirayalal Kapur v. Jia Rani, AIR 1973 Delhi 186;
Nallammal v. Ayisha Beevi, 2017-5 Mad LJ 864).

It is trite law that courts protect settled possession.

Poona Ram v. Moti Ram, AIR 2019 SC 813,
Aarti v. Aruna Gautham. 2015 -1 RCR (Civil) 160,
Rame Gowda v. M. Varadappa Naidu, 2004-1 SCC 769.
Krishna Ram Mahale v. Shobha Venkat Rao, (1989) 4 SCC 131
Ram Rattan v. State of Uttar Pradesh, (1977) 1 SCC 188.
Puran Singh v. The State of Punjab, (1975) 4 SCC 518,
Munshi Ram v. Delhi Administration, (1968) 2 SCR 455,

Nature of Property and Claim of Occupant Whether Bona Fide were Determinative Factors

In Government of A.P. v. Thummala Krishna Rao, (1982) 2 SCC 134, the question considered was whether summary remedy for evicting a person provided for by section 6 of the Andhra Pradesh Land Encroachment Act, 1905, could be resorted to. It was pointed out

the duration of encroachment, short or long, was not the determinative matter
what was relevant for the decision was more the nature of the property and
whether the claim of the occupant was bona fide.

It was also found that if there was bona fide dispute, on title between the Government and the occupant, it must be adjudicated upon by the Ordinary courts of law. The Government cannot decide such questions unilaterally in its own favour and evict any person summarily. Duration of occupation would be relevant requiring an impartial adjudication according to the established procedure of law, if the person –

occupied openly for an appreciable length of time and
could be taken, prima facie, to have a bonafide claim to the property.

Even Rightful Owner to Take Recourse to law; He cannot take the law in his own hands

In Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769, our Apex Court Court (R.C. Lahoti, B.N. Srikrishna, G.P. Mathur, JJ.) observed that the law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner. It is held as under:

“8. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser.
A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force.
If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession.
The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force.
In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.” (quoted in: Subramanya Swamy Temple, Ratnagiri v. V. Kanna Gounder, 2009-3 SCC 306; Poona Ram v. Moti Ram, AIR 2019 SC 813)

What is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner was made clear in Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769. It reads as under:

“9. …The “settled possession” must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase “settled possession” does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession.” (quoted in Samarpan Varishtha Jan Parisar vs Rajendra Prasad Agarwal, AIR 2022 SC 2209)

Even the Rightful Owner cannot Eject a Trespasser with Force

In Karthiyayani Amma v. Govindan, AIR 1980 Ker 224, the Kerala High Court considered the question whether the rightful owner can eject a trespasser in possession with force; and whether a person in illegal possession could sustain a suit for injunction against the true owner, from forcibly dispossessing him from the property. It was held as under:

“The ultimate position, therefore, reduces itself to this:
Can a person in possession without title sustain a suit for injunction against the rightful owner if he proves possession? Yes.
In this case, plaintiff is found to in be possession. On the finding, he should be granted the injunction prayed for. A person in possession can be evicted only in due process of law. Even the rightful owner cannot eject him with force. If he cannot be evicted with force, he continues to be in possession and he can resist invasion of his possession by everyone including the rightful owner. If the rightful owner threatens his peaceful possession, he can approach Courts of Law and pray for the equitable relief of injunction to protect his possession”. (Followed in: Aiysumma v. Mariyamma, 1994-2 CIVCC 52, 1994-1 KerLT 570. )

It is pointed out in Suresh v. Ashok Girdharilal Chandak, 2016-1 MHLJ 171 that ‘bearing in mind the basic principle of law in civil jurisprudence that even a trespasser cannot be evicted without following due process of law and no one can be allowed to take law into his own hands to recover possession of the property without following due process of law and without proving title to the immovable property in possession of a person holding actual physical possession thereof’.

Divergent Views

It is observed by our Apex Court, in Prataprai N. Kothari v. John Braganza, AIR 1999 SC 1666, as under:

“It is quite obvious that the learned single Judge had not taken note of the principle of possessory title or the principle of law that a person who has been in long continuous possession can protect the same by seeking an injunction against any person in the world other than the true owner. It is also well settled that even the owner of the property can get back his possession only by resorting to due process of law.

Divergent Views are set out in Sopan Sukhdeo Sable v. Assistant Charity Commissioner, AIR 2004 SC 1801 also. They are the following:

first, a person in settled possession cannot be disposed by the owner except by recourse of law
second, a trespasser in possession cannotnot seek injunction against the true owner.

In this case, a forceful postulation is posed-

A trespasser ousted can seek restoration of possession under Section 6 of the Specific Relief Act, 1963 (even) against the true owner. If so, can’t the trespasser seek injunction as to possession, against the true owner?

In Sopan Sukhdeo Sable v. Assistant Charity Commissioner, AIR 2004 SC 1801, the appellants were the plaintiffs whose suit was rejected in terms of Order VII, Rule 11 of the Code of Civil Procedure. It is held in this decision as under:

“24. There are two different sets of principles which have to be borne in mind regarding course to be adopted in case of forcible dispossession. Taking up the first aspect, it is true that where a person is in settled possession of property, even on the assumption that he has no right to remain in property, he cannot be disposed by the owner except by recourse of law. This principle is laid down in Section 6 of the Specific Relief Act, 1963. That Section says that if any person is dispossession without his consent from immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. That a person without title but in “settled” possession – as against mere fugitive possession – can get back possession if forcibly dispossessed or rather, if dispossessed otherwise than by due process of law, has been laid down in several cases. It was so held by this Court in
- Yashwant Singh v. Jagdish Singh, AIR 1968 SC 620,
- Krishna Ram Mohate v. Mrs. Shobha Venkata Rao, (1989) 4 SCC 131 at p. 136;
- Ram Rattan v. State of UP, (1977) 1 SCC 188, and
- State of UP v. Maharaja Dharmender Prasad Singh, (1989) 2 SCC 505.

The leading decision quoted in these rulings is the decision of the Bombay High Court in

K. K. Verma vs. Union of India, AIR 1954 Bom 358.
25. Now the other aspect of the matter needs to be noted. Assuming a trespasser ousted can seek restoration of possession under Section 6 of the Specific Relief Act, 1963 can the trespasser seek injunction against the true owner?
This question does not entirely depend upon Section 6 of the Specific Relief Act, but mainly depends upon certain general principles applicable to the law of injunctions and as to the scope of the exercise of discretion while granting injunction.
In Mahadeo Savlaram Sheike vs. Pune Municipal Corporation, (1995) 3 SCC 33, it was held, after referring to Woodrofe on “Law relating to injunction: L. C. Goyal Law of injunctions:
- David Bean Injunction Jayce on Injunctions and other leading Articles on the subject that the appellant who was a trespasser in possession could not seek injunction against the true owner.
In that context this Court quoted Shiv Kumar Chadha vs. MCD (1993) 3 SCC 161 wherein it was observed that injunction is discretionary and that:
- “Judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court.”
26. Reference was also made to Dalpat Kumar vs. Prahlad Singh (1992) 1 SCC 719 in regard to the meaning of the words prima facie case and balance of convenience and observed in Mahadeos case (supra) that:
- “It is settled law that no injunction could be granted against the owner at the instance of a person in unlawful possession.”
27. The question of forcible possession as claimed is also a matter which can be pressed into service by the parties before the trial Court and if raised the Court shall deal with it considering its relevance to the suit and accept it or otherwise reject the plea in accordance with law. We do not think it necessary to express any opinion in that regard.
28. …. Looking into the nature of dispute it would be appropriate if the trial Court makes an effort to complete the trial within six months from the date of the judgment. The parties are directed to co-operate for disposal of the suit early within the stipulated time. The appeal is allowed to the extent indicated without any order as to costs.”

No Injunction in favour of a Trespasser, against the ‘True Owner’

Following decisions also say – no injunction can be passed, in favour of a trespasser, against the ‘true owner’ of a property:

Tamil Nadu Housing Board v. A. Viswam, 1996 (8) SCC 259;
Premji Ratansey Shah v. Union of India, 1994 (5) SCC 547.

See Blog (Click): Civil Rights and Jurisdiction of Civil Courts

Injunction is a possessory remedy

Five judge bench of the Kerala High Court held as under in E. Keshava Bhat v. K.S. Subraya Bhat, AIR 1980 Ker 40:

“Unaided by authorities, we think that in suits for injunction, we are concerned only with the question of possession; the nature and the character of the possession is immaterial. If the plaintiff does not make out his possession, there is no need at all to consider whether the defendant is in possession, and if so, in what character or capacity; and if the plaintiff makes out his case of possession, the question of defendant’s tenancy again would not fall for consideration.”

See also:

Ladies Corner, Bangalore vs State of Karnataka, ILR 1987 KAR 1710, 1987 (1) KarLJ 402.
Patil Exhibitors (Pvt.) Ltd. vs The Corporation of The City (M Venikatachaliah, J.) : AIR 1986 Kant 194, ILR 1985 Kar 3700, 1985 (2) KarLJ 533.
Referred to in Chetak Constructions Vs. Om Prakash, AIR 2003 MP 145.

Kesar Bai v. Genda Lal – HC and SC Approached in different Perspectives

Kesar Bai v. Genda Lal, 2022-10 SCC 217, arose from a suit seeking declaration of ownership and permanent injunction. The findings of the High Court were the following:

the plea of ownership claimed by the plaintiff based on a sale deed and the plea of adverse possession were contrary to each other;
the plaintiffs could not have been permitted to take both the pleas at the same time;
but, in view of the fact that the plaintiff was in possession of the suit land since the execution of the said sale deed, the plaintiff was entitled for injunction on the basis of his possession.

Setting aside the High Court judgment the Apex Court held as under:

“The possession/alleged possession of the plaintiffs could not have been protected by passing a decree of permanent injunction in favour of the plaintiffs”.

Person in possession can use Reasonable Force to keep out a Trespasser

Though in Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769, our Apex Court Court observed that the rightful owner shall have to take recourse to law if the trespasser is in settled possession of the property belonging to the rightful owner, and the owner cannot take the law in his own hands and evict the trespasser, it is pointed out as under:

“8. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser.
A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force.”

Law Recognises Efficacy of Possession in Section 6 of the Specific Relief Act

Section 6 of the Specific Relief Act allows one to file a suit for recovery of property, on the strength of his prior possession, if he had lost his possession within 6 months of the suit. In such a case, he need not prove his title; and he can succeed on establishing that he has been dispossessed otherwise than in accordance with law within six months.

Sec. 6 of the Specific Relief Act, 1963 reads as under:

6. Suit by person dispossessed of immovable property.
(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.
(2) No suit under this section shall be brought
- (a) after the expiry of six months from the date of dispossession; or
- (b) against the Government.
(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.

If Title not Perfected by Adver. Posn, Can one eject a Trespasser After 6 Months

High Courts differ, as pointed out in Kuttan Narayanan v. Thomman Mathayi, AIR 1966 Ker 179.

Now it is settled that if one fails to exercise his option by filing a suit under Section 6 of the Specific Relief Act within six months, he is at liberty to file a suit to recover his possession (with or without declaration) by a regular suit for recovery of possession. It can be based on title or on his possession in assumed or presumed character of ownership (even if title not perfected by doctrine of adverse possession) on the principle that possession is good title against all the world but the rightful owner. See: Kuttan Narayanan v. Thomman Mathayi, AIR 1966 Ker 179; Kanti Lal v. Smt. Shanti Devi, AIR 1997 Raj 230. (Refer End-Note also)

‘Possession is good against all but the True Owner’ & Sec. 6 of the Sp. Relief Act

The principle ‘Possession is Good against all but the True Owner’ is declared in Parry v. Clissold, (1907) AC 73. In this decision it was also pointed out that if the rightful owner did not come forward and assert his title within the period of limitation, his right would be extinguished and the possessory owner acquires an absolute title.

The Supreme Court of India while accepting this principle in Nair Service Society Ltd. vs. K.C. Alexander, AIR 1968 SC 1165, pointed out that the law in India allows a plaintiff to maintain a possessory suit under Sec. 9 (preset Sec. 6) of the Specific Relief Act. Such a suit can be filed against a title holder, if he had dispossessed the plaintiff ‘otherwise than in due course of law’.

In Nair Service Society Ltd. vs. K.C. Alexander, AIR 1968 SC 1165, it is observed as under:

“17. … To express our meaning we may begin by reading 1907 AC 73 (Perry V. Clissold), to discover if the principle that possession is good against all but the true owner has in any way been departed from.
1907 AC 73 reaffirmed the principle by stating quite clearly:
- “It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title.”
Therefore, the plaintiff who was peaceably in possession was entitled to remain in possession and only the State could evict him. The action of the Society was a violent invasion of his possession and in the law as it stands in India the plaintiff could maintain a possessory suit under the provisions of the Specific Relief Act in which title would be immaterial or a suit for possession within 12 years in which the question of title could be raised.”

In Poona Ram v. Moti Ram, AIR 2019 SC 813, our Apex Court explained the principle ‘possession is a good title of right against any one who cannot show a better’ as under:

“9. The law in India, as it has developed, accords with jurisprudential thought as propounded by luminaries like Salmond. Salmond on Jurisprudence states:
- “These two concepts of ownership and possession, therefore, may be used to distinguish between the de facto possessor of an object and its de jure owner, between the man who actually has it and the man who ought to have it. They serve also to contract the position of one whose rights are ultimate, permanent and residual with that of one whose rights are only of a temporary nature.
- x x x x x
- In English law possession is a good title of right against any one who cannot show a better. A wrongful possessor has the rights of an owner with respect to all persons except earlier possessors and except the true owner himself. Many other legal systems, however, go much further than this, and treat possession as a provisional or temporary title even against the true owner himself. Even a wrongdoer, who is deprived of his possession, can recover it from any person whatever, simply on the ground of his possession. Even the true owner, who takes his own, may be forced in this way to restore it to the wrongdoer, and will not be permitted to set up his own superior title to it. He must first give up possession, and then proceed in due course of law for the recovery of the thing on the ground of his ownership. The intention of the law is that every possessor shall be entitled to retain and recover his possession, until deprived of it by a judgment according to law.
- Legal remedies thus appointed for the protection of possession even against ownership are called possessory, while those available for the protection of ownership itself may be distinguished as proprietary. In the modern and medieval civil law the distinction is expressed by the contrasted terms petitorium (a proprietary suit) and possessorium (a possessory suit).”
10. As far back as 1924, in the case of Midnapur Zamindary Co. Ltd. v. Naresh Narayan Roy, AIR 1924 PC 144, the learned Judge observed that in India, persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a court. Later, in the case of Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165, this Court ruled that when the facts disclose no title in either party, possession alone decides. It was further held that if Section 9 of the Specific Relief Act, 1877 (corresponding to the present Section6) is employed, the plaintiff need not prove title and the title of the defendant does not avail him. When, however, the period of six months has passed, questions of title can be raised by the defendant, and if he does so the plaintiff must establish a better title or fail. In other words, such a right is only restricted to possession in a suit under Section 9 of the Specific Relief Act (corresponding to the present Section 6) but does not bar a suit on prior possession within 12 years from the date of dispossession, and title need not be proved unless the defendant can provide one.
11. It was also observed by this Court in Nair Service Society Ltd. (supra) that a person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against the entire world except the rightful owner. In such a case, the defendant must show in himself or his predecessor a valid legal title and probably a possession prior to the plaintiff’s, and thus be able to raise a presumption prior in time.”

CHANGE IN VIEW OF THE APEX COURT

Should the Defendant-Rightful-Owner Approach the Court Again For Recovery?

Before Kesar Bai v. Genda Lal, our Apex Court held in Padhiyar Prahladji Chenaji v. Maniben Jagmalbhai, 2022 SCC OnLine SC 258 (M.R. Shah, B.V. Nagarathna, JJ.) to the following effect (see ‘End Notes’ below):

The plaintiff is not entitled to any injunction and/or protect his possession against the rightful owner, more particularly, when he fails to get the declaratory relief with respect to the title.
In a suit for permanent injunction to restrain the defendant from interfering with the plaintiff’s possession, the only thing the plaintiff will have to establish is that as on the date of the suit, he was in lawful possession of the suit property and the defendant has tried to interfere or disturb his possession
the plaintiff, who has failed to get any declaratory relief on title cannot be said to be in “lawful possession”. Only when the person seeking the relief is in lawful possession and enjoyment of the property, he is legally entitled to be in possession, and not to disposes him, except in due process of law.
The contention of the plaintiff that even if the plaintiff failed to get the declaratory relief and the suit is dismissed, once the plaintiff is found to be in possession, her possession cannot be disturbed except in due process of law and the only remedy available to the defendant would be “to file a substantive suit to get back the possession is noticed only to be rejected outright”.
In Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira, (2012) 5 SCC 370, it was held that the ‘due process’ or ‘due course’ condition was satisfied the moment the rights of the parties were adjudicated upon by a court of competent jurisdiction, and that it did not matter who brought the action to court.
In Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira, the Court has approved the following findings of the High Court of Delhi in Thomas Cook (India) Ltd. Vs. Hotel Imperial (2006) 88 DRJ 545:
- “In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e. for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not.”
Once the rights of the parties are adjudicated and the defendant is held to be the true owner, it can be said that due process of law has been followed and thereafter the plaintiff is not entitled to any permanent injunction against the true owner.
- Note: It is not specifically stated in this decision, Prahladji Chenaji v. Maniben Jagmalbhai, that one can resume possession using force.

Read Blog: Kesar Bai v. Genda Lal, (2022) 10 SCC 217: Is Something Remains Untold?

When Recovery of Possession granted Without Declaration

Persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration. (Anathula: AIR 2008 SC 2033). Injunction or recovery is granted without declaration in the following cases:

Relevant Act	When Injunction or Recovery Granted Without Declaration
Sp. Relief Act Sec. 34	1. Title: well established; clear,simple and straight-forward; or settled right (lawful possession)Well established possession 2. No Substantial questions of fact and law exists (2017 -7 MLJ 627; 2005-4 MLJ 258): Unnikrishnan Vs. Ponnu Ammal: 1999 1 KLT 298: AIR 1999 Ker 405. 3. No serious denial or cloud(not any apparent defect) on title (or right): Anathula: AIR 2008 SC 2033. (Such as settled or lawful possession: Anathula: AIR 2008 SC 2033; infringement of trade mark or copyright: 2004-3 SCC 90). 4. Void acts:2000 SC 1099; 2009-4 KLT 840; (2002) 9 SCC 28; AIR 1977 SC 1718; 2013 SC 1226 5. Fraud on character of a document (not contents): Premsingh Vs. Birbal: (2006) 5 SCC 353
Sp. Relief Act Sec. 38	Particular instances specified in Sec. 38 (2) & (3) of the Sp. Rlf. Act 1. Breach of Contractual obligations(including Bylaw provisions) 2. Trustee invades plaintiff’s right. 3. No standard for ascertaining damages. 4. Compensation in money would not be adequate relief. 5. Necessary to prevent multiplicity of judicial proceedings.
SR Act: Sec. 41(h)	Fiduciary obligation (attached to trust): 41(h).
..	No lis (no dispute for defendant): 2010-168 DLT 132
Evd. Act, S. 57	Facts judicially noticeable: Evd. Act, S. 57
Contract Act Sec. 74	Law confers a right; or, Right arises under an Act. (Eg. with expression “shall be void”):(2015)7 SCC 601; 2003 SC 4102 Sec. 74 Contract Act: while resisting a claim of return of advance or to support forfeiture of earnest money, the defendant can resist it without a counter claim. In Kailash Nath Associates Vs. Delhi Development Authority (2015) 4 SCC 136, it is held: “The Section applies whether a person is a plaintiff or a defendant in a suit.”
..	Established custom/customary-rights. Eg. Village pathway, Marumakkathayam
Consti-tution	Constitutional right: Art. 19, 21, 300A etc.
Evd. Act	Estoppel against defendant S. 115, 116 (tenant), 117 (licencee) Evd. Act
..	Acquiescence against defendant
..	Already declared (in earlier civil case).

See Blog (Click): Declaration and Injunction

No Res Judicata on a Finding on Title, in an Injunction Suit

In Sulochana Amma Vs. Narayanan Nair [(1994) 2 SCC 14] it is observed as under:

“The decision in earlier case on the issue between the same parties or persons under whom they claim title or litigating under the same title, it operates as a res-judicata. A plea decided even in a suit for injunction touching title between the same parties, would operate as res-judicata. It is a settled law that in a Suit for injunction when title is in issue, for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties when the same is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit, the decree in injunction suit equally operates as a res-judicata.”

“Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler veraciously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.”

(Both, Sulochana Amma and Anathula are referred to in T. Ravi Vs. B. Chinna Narasimha, 2017-7 SCC 342)

See Blog: Res Judicata and Constructive Res Judicata

Mutation will not confer ‘title’; It merely raises a Presumption on Possession

It is a settled proposition of law (i) that the mutation entry in revenue documents will not confer any right, title or interest in favour of any person and (ii) that the mutation in the revenue record is only for the fiscal purpose. After pointing out these legal propositions it is observed in Jitendra Singh vs The State Of Madhya Pradesh, 2021 SCC OnLine SC 802, as under:

“6. Right from 1997, the law is very clear. In the case of Balwant Singh v. Daulat Singh (D) By Lrs., reported in (1997) 7 SCC 137 , this Court had an occasion to consider the effect of mutation and it is observed and held that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. Similar view has been expressed in the series of decisions thereafter.
6.1 In the case of Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186 , it is observed and held by this Court that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. Entries in the revenue records or jamabandi have only “fiscal purpose”, i.e., payment of land revenue, and no ownership is conferred on the basis of such entries. It is further observed that so far as the title of the property is concerned, it can only be decided by a competent civil court. Similar view has been expressed in the cases of:
- Suman Verma v. Union of India, (2004) 12 SCC 58; Faqruddin v. Tajuddin (2008) 8 SCC 12;
- Rajinder Singh v. State of J&K, (2008) 9 SCC 368;
- Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689;
- T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342;
- Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191;
- Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259; and
- Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70.”

As pointed out above, it is observed by the Apex Court in State of AP v. Star Bone Mill & Fertiliser Company, (2013) 9 SCC 319 that a revenue record is not a document of title; it merely raises a presumption in regard to possession (Quoted in M. Siddiq v. Mahant Suresh Das, 2020-1 SCC 1). The argument as to ownership based upon entries in the revenue records had been negated in Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259. It was held that the revenue record does not confer title to the property nor do they have any presumptive value on the title. (Quoted in Prabhagiya Van Adhikari Awadh Van Prabhag v. Arun Kumar Bhardwaj (SC): 2021)

Revenue Records Do Not Confer or Lose Title

The Supreme Court in Smt. Bhimabai Mahadeo Kambekar v. Arthur Import and Export Company (2019) and Commissioner, Bruhath Bangalore Mahanagra Palike vs Faraulla Khan (2021) observed that mutation in revenue records will not confer or lose title. In this case the court relied on:

Sawarni Vs. Inder Kaur, (1996) 6 SCC 223,
Balwant Singh Vs. Daulat Singh, (1997) 7 SCC 137 and
Narasamma Vs. State of Karnataka, (2009) 5 SCC 591).

Settled Possession and Established Possession

In A. Subramanian v. R. Pannerselvam, AIR 2021 SC 821, the Supreme Court held that even a trespasser, who is in established possession of the property could obtain injunction. But, it was cautioned that the matter would be different, if the plaintiff himself elaborated in the plaint about title dispute and fails to make a prayer for declaration of title along with injunction relief.

In Poona Ram v. Moti Ram, AIR 2019 SC 813, it was pointed out in a case where there was no document to prove settled possession that ‘merely on doubtful material and cursory evidence, it cannot be held that the plaintiff was ever in possession of the property, and that too in settled possession’. It held further as under:

“13. The crux of the matter is that a person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such a right against the true owner. Settled possession means such possession over the property which has existed for a sufficiently long period of time, and has been acquiesced to by the true owner. A casual act of possession does not have the effect of interrupting the possession of the rightful owner. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. Settled possession must be (i) effective,(ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. There cannot be a straitjacket formula to determine settled possession. Occupation of a property by a person as an agent or a servant acting at the instance of the owner will not amount to actual legal possession. The possession should contain an element of animus possidendi. The nature of possession of the trespasser is to be decided based on the facts and circumstances of each case.”

Mandatory Injunction – To Preserve Status Quo of the Last Non-Contested Status

Dorab Cawasji Warden v. Coomi Sorab Warden, AIR 1990 SC 867 : (1990) 2 SCC 117, is the laudable decision on interim mandatory injunction. It is laid down in this decision that interlocutory mandatory injunctions are granted to:

(i) preserve or restore the status quo ante, of the last non-contested status which preceded the pending controversy, or
(ii) to compel the undoing of those acts that have been illegally done, or
(iii) the restoration of that which was wrongfully taken from the party complaining.

It is also pointed out that the court would consider the prospect of granting of a mandatory injunction finally, after trial; and delineated that a fresh state of affairs cannot be allowed to be created by the grant of such an injunction.

Long continuous Possession and Injunction against True Owner

In Prataprai N. Kothari v. John Braganza, AIR 1999 SC 1666, dismissing the appeal it is observed by our Apex Court as under:

“It is quite obvious that the learned single Judge had not taken note of the principle of possessory title or the principle of law that a person who has been in long continuous possession can protect the same by seeking an injunction against any person in the world other than the true owner. It is also well settled that even the owner of the property can get back his possession only by resorting to due process of law.

Salmond on Jurisprudence (12^th Edn.), says as under:

“In English law possession is a good title of right against anyone who cannot show a better.

Settled-Possessory- Title, in Part Performance

In Ghanshyam v. Yogendra Rathi, AIR 2023 SC 2754, 2023-7 SCC 361, the Supreme Court allowed the plaintiff (purchaser in an agreement for sale) to recover property from the defendant/title-holder (true-owner). It was on two, main, grounds:

First, the plaintiff/purchaser was having settled-possessory- title, in part performance under Sec. 53A of the Transfer of Property Act, 1882

The defendant/title-holder (allowed to occupy a portion of the property for a period of 3 months as a licencee) failed to vacate despite notice.

Gratuitous Possession – Owner can Reclaim Even Without Knowledge of the Other

In Anima Mallick v. Ajoy Kumar Roy, (2000) 4 SCC 119, our Apex Court held that where the sister gave possession as gratuitous to her brother, the sister could reclaim such possession even without knowledge of the brother; and that ‘no one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property. (Relied on in Maria Margadia Sequeria v. Erasmo Jack De Sequeria 2012 (5) SCC 370, Indore Development Authority v. Manoharlal, (2020) 8 SCC 129; AIR 2020 SC 1496.)

Possession Follows Title and Adverse Possession

It is held in MS Jagadambal v. Southern Indian Education Trust, 1988 (Supp) SCC 144 that the possession continues with the title holder unless and until the defendant acquires title by adverse possession (possession follows title). In LN Aswathama v. P Prakash, 2009-13 SCC 229, the Supreme Court held as under:

“In law, possession follows title. The plaintiffs having established title to the suit property, will be entitled to decree for possession, unless their right to the suit property was extinguished, by reason of defendant being in adverse possession for a period of twelve years prior to the suit.”

Adverse Possession Inchoate until title is upheld by a Competent Court

One can acquire right of easement and adverse possession by prescription. But, prescriptive rights are said to be inchoate (started; but, not full-blown) until the such title is upheld by a competent court. It was observed in Sultan Ahmad v. Valiullah (1912) 10 ALJ 227, that the result of the Easements Act and the similar provisions of the Limitation Act was that a right of easement could not be said to be perfected until the right was declared by a decree of court. See also:

Sultan Ahmad v. Valiullah (1912) 10 ALJ 227 is referred to in: Nachiparayan v. Narayana Goundan, (1920): 60 Ind Cas 171, (1920) 39 MLJ 574; Arjuna Udayar v. Manuswamy Naicker, 1999-1 CurCC 97;
D. Ramanatha Gupta vs S. Razaack, AIR 1982 Kant 314..
See also: Tradesh and Miners, Ltd v. Dhirendra Nath Banerjee, AIR 1944 Pat 261.

Determination of Possession by Court By Photographs, CD or Commission

Can a commission be appointed to find out the physical possession of a property?

In Bandi Samuel v. Medida Nageswara Rao, 2017 (1) ALT 493 it is pointed out that the factum of possession of the property in dispute, which is nothing, but fishing of information and not elucidating any matter in dispute.

See also: Malaya Gounder v. Palanisamy (1995) 1 MLJ 626,
Puttappa v. Ramappa, AIR 1996 Kant 257,
Rajendran v. Lilly Ammal alias Nelli Ammal, 1998 (II) CTC 163,
Benz Automobiles Private Limited v. Mohanasundaram, 2003 (3) MLJ 391,
D. Kuttiyappan v. Meenakshiammal Polytechnic Unit, 2005 (4) CTC 676,
Devadoss v. A. Duraisingh, 2002 (3) CTC 748,
Parepally Satyanarayana v, Vutukuri Meeneder Goad, 2008 (1) ALT 461;
KMA Wahab v. Eswaran, 2008 (3) CTC 597,
Ramdas Trimbak v. Bajirao Sanap, 2018-1 MHLJ 866, 2018-5 AIR BomR 57,
S. Kalam v. V. Valliammai, 2021-7 Mad LJ 137,
K. Sellammal v. M. Valarmathy, 2022, Madras High Court.

In Indore Development Authority v. Manoharlal, 2020-8 SCC 129, AIR 2020 SC 1496, it is observed:

“270. The decision in Velaxan Kumar (supra) cannot be said to be laying down the law correctly. The Court considered the photographs also to hold that the possession was not taken. Photographs cannot evidence as to whether possession was taken or not. Drawing of a Panchnama is an accepted mode of taking possession. Even after re-entry, a photograph can be taken; equally, it taken be taken after committing trespass. Such documents cannot prevail over the established mode of proving whether possession is taken, of lands. Photographs can be of little use, much less can they be a proof of possession. A person may re-enter for a short period or only to have photograph. That would not impinge adversely on the proceedings of taking possession by drawing Panchnama, which has been a rarely recognised and settled mode of taking possession.
271. In the decision in Raghbir Singh Sehrawat v. State of Haryana, (2012) 1 SCC 792 the observation made was that it is not possible to take the possession of entire land in a day on which the award was declared, cannot be accepted as laying down the law correctly and same is contrary to a large number of precedents. The decision in Narmada Bachao Andolan v. State of M.P. (2011) 7 SCC 639, is confined to particular facts of the case. The Commissioner was appointed to find out possession on the spot. DVDs and CDs were seen to hold that the landowners were in possession. The District Judge, Indore, recorded the statements of the tenure-holder. We do not approve the method of determining the possession by appointment of Commissioner or by DVDs and CDs as an acceptable mode of proving taking of possession. The drawing of Panchnama contemporaneously is sufficient and it is not open to a court Commissioner to determine the factum of possession within the purview of Order XXVII, Rule 9 CPC. Whether possession has been taken, or not, is not a matter that a court appointed Commissioner cannot opine. However, drawing of Panchnama by itself is enough and is a proof of the fact that possession has been taken.”

Kerala High Court held in Thomas VY@ Sajimon v. Joseph VY, ILR 2020-3 Ker446, 2020-3 Ker LJ 574, 2020-3 KHC 613, as under:

“15. In a suit for permanent prohibitory injunction, the burden is entirely on the plaintiff to bring convincing evidence to show his possession over the plaint schedule property and for so doing, it is not permissible for the plaintiff to invoke Order 26 Rule 9 CPC, which is intended for a different purpose. In a matter relating to the investigation into the disputed question of fact of possession, the power of appointment of Commissioner for local investigation cannot be exercised by the Court to assist the party to collect evidence, where the party can collect evidence by itself. If a party claims that, that party is in possession of the disputed property and if the other party denies the same by filing the written statement, the disputed fact can be adjudicated by the Court after framing of issues and recording the evidence of the parties. So many articles may be found in the building at the time of local inspection by the Commissioner. Even clothes and other articles may be found in the building. The Commissioner has to just make an inventory of the items found in the building. The Commissioner cannot report about the ownership of the articles found in the premises, as the said aspect is a matter for evidence. If at all the Commissioner makes any such report, the Court shall not accept the report, even for primary satisfaction without any other convincing material. If the Advocate Commission is deputed for the purpose of ascertaining the possession of the party over the property, the said aspect can be done only after gathering information from the people in the locality, which amounts to fishing out the evidence or gathering of evidence and hence the same is only hearsay information. The party can even otherwise examine the persons, with whom the Commissioner makes enquiry, before the Court to prove the possession of the person over the property in question. The fishing out of information is to make a local enquiry collecting hearsay materials from the persons gathered there or the like, which is different from collection of materials which he finds at the scene. That apart, if that task is left to be decided by the Advocate Commissioner, any fraudulent litigant can create evidence and with the assistance of the Commissioner, he will be able to prove that he is in possession of the property, which is not the purpose for which Order 26 was enacted. Therefore, it is always advisable not to appoint an Advocate Commissioner, as in the present case, to find out the possession of the property, which has to be decided only from oral and documentary evidence to be adduced by the parties. The High Court of Madras in Mr. D. Kuttiyappan v. Meenakshiammal Polytechnic Unit, (2005) 4 MLJ 592, held that the Advocate Commissioner cannot be appointed to note down the factum of possession or the enjoyment . I respectfully agree with the view of the High Court of Madras in D. Kuttiyappan (Supra). Thus, it is settled law that the power of appointment of Commissioner for local investigation cannot be exercised by the Court to enable any party to collect evidence through the Commissioner to prove the factum of possession or enjoyment. This being the situation, the argument of the learned Counsel for the defendant that the report of the Commissioner would show the possession of the defendant in the plaint schedule property cannot be accepted even for the prima facie satisfaction of the Court.”

Adverse Possession – Present view – Give prominence to overt and adverse acts of trespasser.

Following are the important decisions to see the present view on adverse possession:

Karnataka Board of Wakaf v. Govt of India – AIR 2004 SC 2096
T. Anjanappa v. Somalingappa [(2006) 7 SCC 570]
PT Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753
Ravinder Kaur Grewal v. Manjit Kaur AIR 2019 SC 3827: (2019) 8 SCC 729

PT Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753, is the latest decision of the Supreme Court that discussed various views on adverse possession. It is observed in this decision as under:

“Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile.”
“Thus, there must be intention to dispossess. And it needs to be open and hostile enough to bring the same to the knowledge and plaintiff has an opportunity to object. “

U.N. Mitra, in the “Law of Limitation and Prescription” (Tagore Law Lectures – 12th Edition, Vol.2, Page 1430) it is stated as under:

“A squatter is one who settles on land without title or with a view to acquiring title. He is a person who settles or locate on land enclosed or unenclosed with no bona fide claim or colour of title and without consent of the owner. He is merely an intruder and no matter how long he may continue there, no right in law vests in him. A squatter who does not set up a claim of right cannot plead adverse possession. No length of squatting possession would operate as a good or valid defence in a suit for possession by the true owner. A mere squatter or intruder who does not deny the title of the true owner or set up any right in himself cannot claim to be in adverse possession. ………” (Quoted in: K.J. Abraham v. Mrs. Mariamma Itty, ILR 2016-3 Ker 98)

In a nutshell, adverse possession arises from:

acquiescence of the owner to the hostile acts; and
hostile acts of the trespasser.

Article 65 of Limitation Act, 1963: Major Changes in Law of Adverse Possession

Articles 65 of the Limitation Act, 1963 brought-in complete change insofar as the onus of proof is concerned (from the earlier law of 1908): The new provision casted onus on the trespasser to prove claims of title by ‘adverse’ possession. Adverse possession arises, under Article 65 of Limitation Act, 1963, only ‘by the positive and hostile acts’ of the trespasser; that is, mere possession is not sufficient, but, it must be ‘adverse’ to the true owner.

Article 65 of Limitation Act reads as under:

65. For possession of immovable property or any interest therein based on title.

12 years

When the possession of Defendant becomes
adverse to the plaintiff.

In T. Anjanappa v. Somalingappa, (2006) 7 SCC 570, it is observed that the possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former’s hostile action

Our Apex Court held as under:

“The concept of adverse possession contemplates a hostile possession i.e., a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other’s rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner’s right excluded him from the enjoyment of his property.
…The High Court has erred in holding that even if the defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs, the same was inconsequential. Obviously, the requirements of proving adverse possession have not been established. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not raise…… Therefore, the defendants are in possession and enjoyment of the property knowing fully well that the property belonged to the plaintiff’s father and the plaintiff’s vendor also did not take any action to evict them and the plaintiff and his vendor were aware that the properties belonged to them and despite the same, the plaintiff’s vendor did not take any action to evict them. Hence, the appellants/defendants have also perfected title by adverse possession. Therefore, the 2nd substantial question of law of is answered in favour of the appellants/defendants.”

Possession is heritable and transferable

Possession is a heritable and transferable right. [See: Nallammal Vs. Ayisha Beevi, 2017-5 Mad LJ 864; Phirayalal Kapur Vs. Jia Rani, AIR 1973 Delhi 186]. A settled possession can be protected by court-injunction.

How to Plead Adverse Possession

It is really a troublesome matter for the advocates. Karnataka Board of Wakaf v. Govt of India – AIR 2004 SC 2096; T. Anjanappa v. Somalingappa – [(2006) 7 SCC 570]; and PT Munichikkanna Reddy v. Revamma – AIR 2007 SC 1753, guide us in this field. It may be necessary to plead the following modules.

The claimant has been in ‘hostile and open, continuous uninterrupted as of right‘ possession of the land,
in denial of the title of the rightful owner,
adversely to the interest of the owner of the land,
started with wrongful disposition of the rightful owner,
exercising absolute rights of ownership in respect of the land,
on and from .. . .. (Specify date).

And, it is appropriate to plead ‘hostile and open’ possession as under:

Claimant’s acts were hostile enough to make the true owner aware of the adverse possession;
or, he made the true owner knew as to his hostile acts or adverse possession (from the inception).

See Blog: Adverse Possession: An Evolving Concept

Sec. 27, Limitation Act – Extinguishment of right to property:

Sec. 27 of the Limitation Act speaks that at the determination of the period “hereby limited to any person for instituting a suit for possession of any property”, his right to such property shall be extinguished.

Adverse possession confers title under Sec. 27 (by necessary implication, because extinguished title of real owner comes to vest in wrongdoer – because, rights thereon had already been lost to the true owner, and passed over to the ‘possessory/adverse’ owner).

Therefore it is clear that Sec. 27 is a provision in the Limitation Act that gives a substantial right to a party. In view of Sec. 27 one can seek declaration of title by adverse possession and consequential injunction or recovery. That is why it is held in Ravinder Kaur Grewal v. Manjit Kaur, AIR 2019 SC 3827: (2019) 8 SCC 729, that the person acquiring title by adverse possession can use it as a sword.

Legal Position of Licencees

In Samarpan Varishtha Jan Parisar v. Rajendra Prasad Agarwal, AIR 2022 SC 2209, our Apex Court held that the inmates in an old age home have no substantive right for seeking injunction as they are only licensees. The court relied on the following earlier decisions:

In Associated Hotels of India v. R.N. Kapoor AIR 1959 SC 1262 it was held that in case of a licensee, the legal possession continues with the owner as in terms of Sec. 52 of the Indian Easements Act, 1882, grant of a mere right to do upon the property of another, something which would in the absence of such right be unlawful.
In Sohan Lal Naraindas v. Laxmidas Raghunath Gadit (1971) 1 SCC 276, it has been held that a lease creates an interest in the property whereas a license creates no estate or interest in the immovable property of the grantor.
In Behram Tejani and Ors. v. Azeem Jagani (2017) 2 SCC 759, it is held that a person holding the premises gratuitously or in the capacity as a caretaker or a servant would not acquire any right or interest in the property and even long possession in that capacity would be of no legal consequences.

The Supreme Court quoted the following from the Three-Judge Bench decision in Maria Margarida Sequeira Fernandes v. Erasmo Jack De Sequeira, (2012) 5 SCC 370, which reads as under:

“1. No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.
2. Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.
3. The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.
4. The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour.
5. The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession.”

Also relied on:

Maganlal Radia v. State of Maharashtra 1971 Mh.L.J. 57,
Conrad Dias of Bombay v. Joseph Dias of Bombay 1994 SCC OnLine Bom 528,
Hyderabad Metropolitan Development Authority v. Hotel Malligi Pvt. Ltd. 2017 SCC OnLine Hyd 1,
General Merchant Association v. The Corporation of Chennai 1998 SCC OnLine Mad 848.

End Notes:

While considering whether possessory title can be made the foundation for a suit in ejectment filed even after the expiry of six months, it is held in Kuttan Narayanan VS Thomman Mathai, AIR 1966 Ker 179, as under as regards ‘Possessory Title’.

“6. Possession by itself is a substantive right recognised by law and has legal incidents attached to it apart from ownership. Even before the acquisition of statutory title by adverse possession for the requisite period under the Limitation Act, the possessory owner has well-defined rights in property. It is now settled beyond all dispute that this interest is heritable, devisable and transferable. This interest is referred to as possessory title as distinct from proprietory title. A person having such interest must be allowed to enforce those rights against all the world except those who have a better title or better right than himself. Salmond on Jurisprudence, Eleventh edition, observes at page 345:
“In English law possession is a good title of right against any one who cannot show a better. A wrongful possessor has the rights of an owner with respect to all persons except earlier possessors and except the true owner himself.”
and at pages 473 and 474 it is observed:
“On the other hand, the thing of which possession is taken may already be the property of some one else. In this case the title acquired by possession is good, indeed, against all third persons, but is of no validity at all against the true owner. Possession, even when consciously wrongful, is allowed as a title of right against all persons who cannot show a better, because of a prior title in themselves. Save with respect to the rights of the original proprietor, my rights to the watch in my pocket are much the same, whether I bought it honestly, or found it, or abstracted it from the pocket of some one else. If it is stolen from me, the law will help me to the recovery of it. I can effectually sell it, lend it give it away, or bequeath it, and it will go on my death intestate to my next of kin. Whoever acquires it from me, however, acquires in general nothing save my limited and imperfect title to it, and holds it, as I do, subject to the superior claims of the original owner.
If a possessory owner is wrongfully deprived of the thing by a person other than the true owner, he can recover it. For the defendant cannot set up as a defence his own possessory title, since it is later than, and consequently inferior to, the possessory title of the plaintiff. Nor can he set up as a defence the title of the true owner the jus tertii, as it is called; the plaintiff has a better, because an earlier, title than the defendant, and it is irrelevant that the title of some other person, not a party to the suit, is better still. The expediency of this doctrine of possessory ownership is clear. Were it not for such a rule, force and fraud would be left to determine all disputes as to possession, between persons of whom neither could show an unimpeachable title to the thing as the true owner of it.”
Pollock & Wright in their book’Possession in the Common Law’ expressed themselves thus at “page 91:
“Existing possession, however acquired, is protected against any interference by a mere wrongdoer; and the wrongdoer cannot defend himself by showing a better title than the plaintiff’s in some third person through or under whom he does not himself claim or justify. ‘Any possession is a legal possession’ i. e. lawful and maintainable ‘against a wrongdoer.'”
and at page 95:
“It would be possible at first sight to suppose that, as between a succession of independent occupiers who were all wrongdoers as against the true owner, the law must be indifferent, with the result of conferring an absolute title upon the person who happens to be in possession when the time of limitation expires. Reflection, however, shows this to be contrary to the reason and principles of the law. Possession being once admitted to be a root of title, every possession must create a title which, as against all subsequent intruders, has all the incidents and advantages of a true title …In the language of the modern authorities, ‘possession is good title’ nothing less ‘against all but the true owner.”‘
7. The English doctrine of possessory title is expressed in the following terms by Cockburn, C. J., in Asher v. Whitlock 1886 Law Journal 35 Q. B. 17:
“I take it to be established by authority that possession is good against all the world except the person who can show a better title than the one in possession. Doe v. Dyeball ILR. 20 Cal. 834 shows that possession, even for a year, is sufficient against a mere subsequent possession. The whole law of disseisin was founded upon the principle that the disseisin gives title to the disseisor against all the world but the disseisee.”‘
8. Their Lordships of the Judicial Committee of the Privy Council in Perry v. Clissold & c. 1907 A. C. 73, 79 decided :
“It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by process of law within the period prescribed by the provisions of the Statute of Limitations applicable to the case, his right is for ever extinguished, and the possessory owner acquires an absolute title.’
9. The above is certainly the doctrine of English Law. The rule of English Law that possession is good title against all but the true owner has been adopted by the decisions of the Indian High Courts and also by the decisions of the Judicial Committee of the Privy Council in the Indian cases. In Khajah Enaetoollah Chowdhry v. Kishen Soondur Surma &c. VIII Weekly Reporter 386, 387 & 388 Dwarkanath Mitter, J. posed the question thus:
“Can the Civil Courts give a decree for immovable property on the bare ground of illegal dispossession in a suit brought after six months from the date of such dispossession, it being borne in mind, however, that the defendant has failed to prove his own title to the same?”
and answered the same in the following terms:
“But we do not see any reason why a mere wrongful dispossessor should require proof from his adversary of anything beyond the illegal dispossession complained of. He himself has not got and never had any title to the land. The act of dispossession committed by him has been entirely without any sanction from law. Justice and equity require that he should be compelled to restore the party wronged by him to the same position which the latter enjoyed before the date of the illegal ejectment. To adopt the contrary view appears to us to be tantamount to holding out a premium in favour of wrong and violence.”
and in Hari Khandu v. Dhondi Natha VIII Bombay Law Reporter 96 Sir Lawrence Jenkins, C. J. said: “Possession is evidence of ownership, and is itself the foundation of a right to possession.” and Subramania Ayyar, J. in Mustapha Saheb &c. v. Santha Pillai &c. ILR. 23 Mad. 179,182 said:
“that the rule of law that a party ousted by a person who has no better right is. with reference to the person so ousting, entitled to recover by virtue of the possession he had held before the ouster even though that possession was without any title” is so firmly established as to render a lengthened discussion about it quite superfluous.”
10. In Sundar v. Parbati ILR. 12 All. 51 decided by their Lordships of the Judicial Committee of the Privy Council, the suit was for partition and recovery of possession filed by the junior widow of a deceased Hindu against the senior widow who denied the junior widow’s right to separate possession and contended that she was entitled to manage the whole estate. The Subordinate Judge decreed the plaintiff’s suit. A Bench of the Allahabad High Court reversed the decree of the Subordinate Judge and dismissed the suit. Lord Watson delivering the judgment of the Board, observed at page 57:
“If it were necessary to determine the point, their Lordships would probably have little difficulty in accepting the opinion of the High Court that a Hindu Brahman cannot lawfully adopt his own sister’s son. But apart from that question, and also from any question touching the legal effect of Baldeo Sahai’s will, the fact of joint possession by the two widows of the estates which belonged to the testator, ever since the death of Premsukh in 1879, appears to them to be sufficient for disposing of this suit in favour of the appellant. Their Lordships are at a loss to understand, at all events to appreciate, the grounds upon which the Chief Justice endeavours to differentiate between the authorities which he cites, the import of which he correctly states, and the position of the parties to this action. Their possession was lawfully attained, in this sense that it was not procured by force or fraud, but peaceably, no one interested opposing. In these circumstances, it does not admit of doubt that they are entitled to maintain their possession against all comers except the heirs of Premsukh or of Baldeo Sahai, one or other of whom (it is unnecessary to say which) is the only person who can plead a preferable title. But neither of these possible claimants is in the field, and the widows have therefore, each of them, an estate or interest in respect of her possession, which cannot be impaired by the circumstance that they may have ascribed their possession to one or more other titles which do not belong to them. It is impossible to hold that a joint estate is not also partible; and their Lordships will therefore humbly advise Her Majesty that the judgment of the High Court ought to be reversed, and that of the Subordinate Judge restored.”
The above principle was reiterated by their Lordships of the Judicial Committee in Ismail Ariff v. Mahomed Ghous ILR. 20 Cal. 834. At page 843 their Lordships observed:
“It appears to their Lordships that there is here a misapprehension of the nature of the plaintiff’s case upon the facts stated in the judgment. The possession of the plaintiff was sufficient evidence of title as owner against the defendant. By S.9 of the Specific Relief Act (Act 1 of 1877), if the plaintiff had been dispossessed otherwise than in due course of law, he could, by a suit instituted within six months from the date of the dispossession, have recovered possession, notwithstanding any other title that might be set up in such suit. If he could thus recover possession from a person who might be able to prove a title, it is certainly right and just that he should be able, against a person who has no title and is a mere wrong-doer, to obtain a declaration of title as owner, and an injunction to restrain the wrong-doer from interfering with his possession. The Appellate Court, in accordance with the judgment above quoted, has dismissed the suit. Consequently, the defendant may continue to wilfully, improperly and illegally interfere with the plaintiff’s possession, as the learned judge say he has done, and the plaintiff has no remedy. Their Lordships are of opinion that the suit should not have been dismissed; and that the plaintiff was entitled in it to a declaration of his title to the land.”
The principle underlying the rule that possession is a good title against all the world except the person who can show a better title is stated thus in Narayana Row v. Dharmachar ILR. 26 Mad: 514, 518:
“The principle underlying the rule of law in question seems to be that acquisition of title by operation of the law of limitation being a lawful mode of acquiring title, the person in peaceable possession is entitled to maintain such possession against all but the true owner and that therefore a third party who has no better title than the person in possession has no right to invade upon the possession of the latter and interrupt or arrest his lawful acquisition of title by his continuing to remain in possession for the statutory period. ‘ It is the true owner alone that is entitled to assert his title as against the person wrongfully in possession, and prevent such wrongful possession ripening into prescriptive title. But a third party who without deriving title under the true owner and without his authority, interrupts such possession before it has ripened into prescriptive title, is a trespasser, not only against the true owner, but also against the party actually in possession; and. subject to the law of limitation, either of them is entitled to maintain a suit in ejectment against such intruder as a trespasser.”
11. We are therefore of the view that a person in juridical possession, if dispossessed by a trespasser without title, can recover possession on the sole ground of his prior possession even beyond six months from the date of dispossession and this is enough to dispose of the second appeal.
12. But the learned advocate for the appellant relying on the decision in Nisa Chand Gaita & C.V.. Kanchiram Bagani ILR. 26 Cal. 579 submitted that mere previous possession for any period short of the statutory period of twelve years will not entitle a plaintiff to a decree for recovery of possession in a suit brought more than six months after dispossession, even if the defendant could not establish any title to the disputed land. The. point which, arose for decision in ILR. 26 Cal. 579 was whether the plaintiff is entitled to a decree merely upon proof of previous possession for a period less than twelve years, on the ground that the defendant has established no title, the suit having been brought more than six months after the date of dispossession. ILR. 20 Cal. 834 was distinguished thus:
“There (in ILR. 20 Cal. 834) the plaintiff was in possession when he brought his suit, whereas in the present case the plaintiff is out of possession. What the plaintiff asked for in the case of Ismail Ariff v. Mahomed Ghous was a decree declaring his right, and an injunction restraining the defendant from disturbing his possession; what the plaintiff asks for in this case is only recovery of possession; and what was said by their Lordships of the Judicial Committee with reference to the plaintiff’s right to obtain this relief is to be found in the following passage of their judgment: “It appears to their Lordships that there is here a misapprehension of the nature of the plaintiff’s case upon the facts stated in the judgment. The possession of the plaintiff was sufficient evidence of title as owner against the defendant. By S.9 of the Specific Relief Act (1 of 1877), if the plaintiff had been dispossessed otherwise than in due course of law, he could by a suit instituted within six months from the date of the dispossession, have recovered possession, notwithstanding any other title that might be setup in such suit. If he could thus recover possession from a person who might be able to prove a title, it is certainly right and just that he should be able, against a person who has no title and is a mere wrong doer, to obtain a declaration of title as owner, and an injunction to restrain the wrong-doer from interfering with his possession.” This shows, as we understand the judgment, that the reason for their Lordships’ decision was this: that as the plaintiff, had his position been rendered somewhat worse by his being dispossessed, could, by instituting a suit within six months for recovery of possession under S.9 of the Specific Relief Act, have recovered possession even as against a person who might establish a better title, it was only right and just that if he brought his suit before he was dispossessed he could be declared entitled to retain possession as against a mere wrong-doer, and should obtain an injunction restraining the wrong-doer from interfering with his possession. But, though that was so in the case of a plaintiff who was in possession, and had, therefore, a possibility open to him of being restored to possession upon mere proof of possession, by instituting a suit under S.9 of the Specific Relief Act upon being dispossessed, it does not follow that it should be so in the case of a plaintiff who had been in possession, and allowed more than six months to elapse after his dispossession, and therefore lost the possibility of recovering possession, by a suit under S.9 of the Specific Relief Act, upon mere proof of previous possession.”
13. Distinguishing I. L. R.20 Cal. 834 in the above manner, the Calcutta High Court in ILR. 26 Cal, 579 sought support for the dictum in the following observations of the Privy Council in J. P. Wise &c. v. Ameerunnissa Khatoon & c. VII L. R. Indian Appeals 73, 80.
“It is quite clear that the plaintiff’s have failed to make out a title. The Defendants were put into possession by the Government, who were entitled to the lands, and they were ordered by the Magistrate under the Code of Criminal Procedure to be retained in possession. If the Plaintiffs had wished to contend that the Defendants had been wrongfully put into possession and that the Plaintiffs were entitled to recover on the strength of their previous possession without entering into a question of title at all, they ought to have brought their action within six months under S.15 of Act XIV of 1859; but they did not do so. The High Court, with reference to this point say (and, in their Lordships’ opinion, correctly say): “Further, de facto possession having been given to the Defendants under S.318 of the Code of Criminal Procedure, in accordance with the Deputy Collector’s award, the plaintiff will not be entitled to a decree until and unless he can show a better title to these lands than the Defendants. The fact that the Plaintiffs’ possession as regards B, C, and D was confirmed under Act IV of 1840, and that the defendants Nos. 2 and 3 unsuccessfully endeavoured to disturb them by regular suit, does not bar the right of Government. S.2 of Act IV of 1840 only affects persons concerned in the dispute. If Kalkini had belonged to a private individual he might have reduced into his own possession lands which had accreted to the estate and which undoubtedly were his. But lands to which he is unable to make out a title cannot be recovered on the ground of previous possession merely, except in a suit under S.15 of Act XIV of 1859, which must be brought within six months from the time of that dispossession.”
The Calcutta High Court on an interpretation of ILR. 20 Cal. 834 and L. R. VII I. A. 73 has therefore taken the view that S.9 of the Act operates as a bar to the institution of suits in which the claim for possession of any immovable property is based on anything but proprietory title.
14. On the other hand, the decision in ILR. 20 Cal. 834 was relied on by the other High Courts for the position that possessory title can be made the foundation for suits in ejectment filed after six months from the date of dispossession against trespassers who have noctitle.
15. The effective answer to the basis of the decision of the Calcutta High Court in ILR. 26 Cal. 579 has been furnished by Subramania Ayyar & O’ Farrelll JJ. in Mustapha Saheb & c. v. Santha Pillai & c. ILR. 23 Mad. 179,183. Subramania Ayyar J. at page 183 observed:
“And with reference to the grounds on which decision in Nisa Chand Gaita v. Kanchiram Bayani (ILR. 26 Cal. 579) seems to rest, it is necessary to make but two observations. The first is that S.9 of the Specific Relief Act cannot possibly be held to take away any remedy available with reference to the well-recognised doctrine expressed in Pollock and Wright on Possession thus: Possession in law is a substantive right or interest which exists and has legal incidents and advantages apart from the true owner’s title, (at page 19). The second observation is that in Wise v. Ameerunnissa Khatoon (L. R.7 I. A. 73) relied on in Nisa Chand Gaita v. Kanchiram Bagani (ILR. 26 Cal. 579) the defendant had a better right than the plaintiff, since the possession of the former was authorised by the Government whose property the land in dispute was and consequently nothing said by their Lordships in a case wherein such were the facts can rightly be construed as intended to lay down the law differently from what it had been all along understood to be.”
and O’Farrell, J. observed:
“All the dictum of the Privy Council in Wise v. Ameerunnissa Khatoon (L. R.7 I. A. 73) appears to amount to is this, that where a plaintiff in possession without any title seeks to recover possession of which he has been forcibly deprived by a defendant having a good title, he can only do so under the provisions of S.9 of the Specific Relief Act and not otherwise.”
16. The Madras High Court again in ILR. 26 Mad. 514 relying on ILR. 20 Cal. 834 took the view that S.9 of the Act is in no way inconsistent with the position that as against a wrong-doer, prior possession of the plaintiff in an action of ejectment is sufficient title, even if a suit is brought more than six months after the date of dispossession and the wrong-doer cannot successfully resist the suit by showing that the title and right to possession are in a third person, and a plea of jus tertii is no defence unless the defendant can show that the act complained of was done by authority of the true owner and it is immaterial however short or recent the plaintiff’s possession was. The only effect of S.9 of the Act is that if a summary suit be brought within the time prescribed by that section, the plaintiff therein who was dispossessed otherwise than in due course of law will be entitled to be reinstated even if the defendant who thus dispossessed him be the true owner or a person authorised by or claiming under him, but a decree in such a suit will not have the force of res judicata on the question of title.
17. We are in respectful agreement with the observations in ILR. 23 Mad. 179 and hold that the decision in ILR. 26 Cal. 579 has proceeded on an incorrect interpretation of the decisions in ILR. 20 Cal 834 and L. R.7 I. A. 73.
18. There remains only to consider the decision of Mr. Justice Raman. Nayar in Vasudeva Kurup v. Ammini Amma 1964 KLT. 468 where it was held that a person in possession without title is entitled to remain in possession even as against the lawful owner until evicted in due course of law and is therefore entitled to get an order of injunction restraining the true owner from disturbing his possession. The right of a person in possession without title to get an injunction on the basis of possessory title against the true owner is not a point arising in the second appeal and we are not expressing any opinion on that aspect. The point decided in 1964 KLT. 468 has no direct bearing on the question to be decided in the second appeal except that possessory title is recognised as the foundation of a claim for maintaining one’s possession. This only supports the view we are taking in this appeal.
19. We therefore fall in line with the decisions of the Allahabad, Madras, Bombay and Patna High Courts and hold that possessory title can be made the foundation for a suit in ejectment filed even after the expiry of six months from the date of possession against a trespasser who has no title.”

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Res Judicata and Constructive Res Judicata

Saji Koduvath, Advocate, Kottayam.

Introduction.

‘Res’, in Latin, means a thing or matter; and ‘Judicata’ means decided or judged.

Thus, Res Judicata applies when the ‘matter is decided’.

Sec. 11, Civil Procedure Code, 1908, reads as under:

Core Ingredients of Res Judicata

The matter in issue has been an issue in a former suit.

Other Requirements

Same matter; Same Parties
Heard and finally decided
By a competent court

No Res judicata, where –

Decision by fraud
Dismissal in limine
Suit was premature
Pure question of law
Compromise decree
Want of jurisdiction
Habeas corpus cases
Dismissal on ‘limitation’
New laws bring changes
Public interest litigation
Decision not on the merits,
Dismissal for want of notice
Suit was not properly framed,
Dismissal on technical ground
Default of plaintiffs appearance,
Decision by an incompetent court
Cases where re-litigation is needed
Misjoinder or non-joinder of parties
Grounds not taken up by appeal court,
Earlier decision between co-defendants,
Findings on the Title in an injunction suit.
Ultimate decision – suit was not maintainable
Dismissed in limine without a Speaking Order
Intermediate reliefs in interlocutory applications.
Findings not Necessary (for supporting decree)
Taxation cases. Liability to pay tax each year differs.
Lower Court findings where appeal decree was passed
Former decision was too perverse (no proper reasoning)
Adverse findings against one who got a favorable decree
Different causes of action, as in an injunction suit or in an eviction suit

Binding Precedent and Res Judicata – a Couplet

Binding Precedent refers to a judicial rule or principle established in an earlier binding decision that must be followed in subsequent similar cases.
Res Judicata applies to findings of both law and fact. It bars the same parties from re-litigating issues that have already been finally decided.
Binding Precedent pertains strictly to legal principles and technically bind courts, not parties.

No ‘Binding Precedent’ if earlier decision was –

without taking into account the statutory provision or factual situation
wrong in law.

Classifications of Res Judicata

In law, ‘res judicata’ signifies ‘bar-by-res-judicata’ to subsequent litigation. Based on practical application of bar-by-res-judicata, judicial findings can be broadly classified into 3 categories:

Res judicata (Bar by actual findings),
Constructive res judicata (Bar by res judicata, beyond findings), and
Ineffectual Res Judicata (Findings; but, no bar by res judicata)

Should the Matter be in “Actual Issue”, Or Need be in “Substance” alone

Earlier Broader View : Sufficient if the Matter was in Issue in Substance

In Gulabchand Chhotalal Parikh v. State of Bombay, AIR 1965 SC 1153, it is held as under:

“We therefore hold that on the general principle of res judicata, the decision of the High Court on a writ petition under Art. 226 on the merits on a matter after contest will operate as res judicata in a subsequent regular suit between the same parties with respect to the same matter.”

In Nayan Bhebli v. Bhutnath Sardar, 2014 5 CHN 594, it is held as under:

“It is not necessary that a distinct issue should be raised. It is sufficient if the matter was in issue in substance [Md. Ali v. Upendra 58 CLJ 196].”

Modern Trend (Stricter Approach): Same Issue Must Have Been Adjudicated in the Former Suit

In M. Siddiq v. Mahant Suresh Das, 2020-1 SCC 1, paras 439 and 446 are noteworthy. They read as under:

439. The applicability of Section 11 is premised on certain governing principles. These are:
- .(i) The matter directly and substantially in issue in the suit should have been directly and substantially in issue in a former suit;
- (ii) The former suit should be either between the same parties as in the latter suit or between parties under whom they or any of them claim litigating under the same title;
- (iii) The court which decided the former suit should have been competent to try the subsequent suit or the suit in which the issue has been subsequently raised; and
- (iv) The Issue should have been heard and finally decided by the court in the former suit.

446. There is absolutely no merit in the contention that the principles of constructive res judicata will bar the subsequent suits. The parties were distinct. The claim in the earlier suit was distinct. The basis of the claim was indeed not that which forms the subject matter of the subsequent suits.

In Srihari Hanumandas Totala v. Hemant Vithal Kamat, AIR 2021 SC 3802; 2021-9 SCC 99, it was held as under:

“26. Section 11 of the CPC enunciates the rule of res judicata: a court shall not try any suit or issue in which the matter that is directly in issue has been directly or indirectly heard and decided in a former suit? Therefore, for the purpose of adjudicating on the issue of res judicata it is necessary that the same issue (that is raised in the suit) has been adjudicated in the former suit. It is necessary that we refer to the exercise taken up by this Court while adjudicating on res judicata, before referring to res judicata as a ground for rejection of the plaint under Order 7 Rule 11.”

In Mohd. Saeed v. Munnu Khan, AIR 2014 All. 125, it is held as under:

“Identity of matter in issue, i.e. the matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue in the former suit either actually (Expln 3) or constructively (Explan 4).
“The subject-matter and the causes of actions of the two suits may be different but the issues may be the same. Expln III refers to direct res judicata and Expln. IV to constructive res judicata. It is not necessary that a distinct issue should be raised. It is sufficient if the matter was in issue in substance.”

Conscious Adjudication of an Issue Constitutes Res Judicata

In Erach Boman Khavar v. Tukaram Shridhar Bhat, 2013-15 SCC 655, it is held that the doctrine of res judicata can only apply when there has been a conscious adjudication of the issue on merits. It is held as under:

“39. From the aforesaid authorities it is clear as crystal that to attract the doctrine of res judicata it must be manifest that there has been a conscious adjudication of an issue. A plea of res judicata cannot be taken aid of unless there is an expression of an opinion on the merits. It is well settled in law that principle of res judicata is applicable between the two stages of the same litigation but the question or issue involved must have been decided at earlier stage of the same litigation.” (Quoted in: Ebix Singapore Private Limited v. Committee of Creditors of Educomp Solutions Limited, 2022-2 SCC 401)

Bar by Res-judicata, When Attracted

Same matter in issue: The matter in issue in earlier suit and the subsequent suit must be directly and substantially same. It need not have been considered, actually; a constructive consideration will be sufficient. But, the consideration of the same should not have been ‘incidental or collateral’.
Same Parties: Parties to both suits must be same. It includes their privies on whom the concerned right or interest may have devolved. No Res Judicata Between Co-Defendants.
Parties litigating under the same title: Parties must be litigating under the same title, in both suits. It refers to the capacity of persons who are suing or who are sued. That is, whether the suit is for the benefit of the person named in the suit alone, or whether that person also represents the interest of another or others. A decision on such a suit will be binding on all such persons represented, and it will be independent of any particular cause of action on which one sues or is sued. In Ram Gobinda v. Bhaktabala, AIR 1971 SC 664, it is observed that the test for res judicata is the identity of title in the two litigations and not the identity of the subject matter involved in the two cases. Explanation VI lays down that where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. It is clear that to attract Explanation VI, all persons who are represented in the representative capacity need not be expressly named in the suit. A suit instituted under Order I, rule 8, CPC will fall under this category.
Tried by a competent court: The former suit must have been tried by a competent court. The principle behind this proposition is that the finding of a Court of limited jurisdiction will not be final and binding. In Explanation II it is clarified that for the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
Heard and finally decided: The matter must have been heard and finally decided by the earlier court in the earlier suit. What is material is the date on which the earlier suit was decreed; and not its date of filing.

The Supreme Court pointed out five conditions to attract Res judicata, in Sheldon Singh v. Daryao Kunwar. AIR 1966 SC 1332. They were –

(i) The matter directly substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue in the former suit;
(ii) The former suit must have been a suit between the same parties or between parties under whom they or any of them claim;
(iii) The parties must have litigated under the same title in the former suit;
(iv) The court which decided the former suit must be a Court competent to try the subsequent suit or the suit in which such issue is subsequently raised; and
(v) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit.

See also:

Ganeshprasad Badrinarayan Lahoti Vs. Sanjeevprasad, 2004-7 SCC 482,
Karnail Singh Vs. Bhajan Singh, 2005 AIR(P& H) 207,
Phonographic Performance Vs. Union of India: 2015-220 DLT 90.

NO Res Judicata on Adverse Findings, In a Favourable Decree, For No Appeal

There will be no res judicata on adverse findings (on other issues) if the suit or appeal is ultimately decided in favour of a party. In PMA Metripolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, it is observed as under:

“48. Last but not the least reason to hold that the finding in the Vattipanam Suit recorded by the High Court in its original judgment on canon etc. could not operate as res judicata is where a decree is one of dismissal in favour of the defendants, but there is an adverse finding against him, a plea of res judicata cannot be founded upon that decision because the defendant having succeeded on the other plea had no occasion to go further in appeal against the adverse finding recorded against him [see Midnapur Zamindari Company Ltd. vs. Naresh Narayan Roy, AIR 1922 PC 241 ] …..
Similarly, in the decision of the Patna High Court in Arjun Singh v. Tara Das Ghosh, AIR 1974 Pat 1 the primary question was whether a party against whom a finding is recorded has got a right of appeal even though the ultimate decision was in his favour and it was held that there was no bar, but what was necessary was that the finding so recorded should operate as res judicata. On facts it was found that the Appellate Court while maintaining the order of dismissal of the suit on preliminary issue recorded findings on other issues which were against the plaintiff, yet the plaintiff was not entitled to file an appeal as the findings on merits which were adverse to him could not operate as res judicata.
In Sham Nath’s case (Sham Nath Madan vs. Mohammad Abdullah, AIR 1967 J&K 85) the learned Single Judge rejected the plea of res judicata raised on behalf of the plaintiff, but while considering the alternative argument, observed that an adverse finding recorded against a defendant in a suit dismissed could not operate as res judicata unless the adverse finding formed a fundamental part of the decree itself.”

In Ravinder Kumar Sharma v. State of Assam, AIR 1999 SC 3571, the Supreme Court held as under:

“23. The respondents before us are, therefore, entitled to contend that the finding of the High Court in regard to absence of reasonable and probable cause or malice – (upon which the decree for pecuniary damages in B and C Schedules was based) can be attacked by the respondents for the purpose of sustaining the decree of the High Court refusing to pass a decree for non-pecuniary damages as per the A Schedule. The filing of cross-objections against the adverse finding was not obligatory. There is no res judicata. …” (Quoted in: Mohammed v. Chandrika, ILR 2010-3 Ker 358; 2010-3 KHC 233; 2010-3 KLT 306)

In Balu Mahadeo Randhir v. Nabilal Haji Habib Gadiwale, 1997-2 BomCR 462; 1997-1 MhLJ 302, it is oheld as under:

“Where a suit is dismissed, the defendant against whom an adverse finding might have come to be recorded on some issue has no right of appeal and he canot question those findings before the Appellate Court. Inasmuch as the defendant could not have filed an appeal, the decision in the aforesaid Regular Civil Suit No. 298 of 1971 cannot act as res judicata…”

In Bakerbag Subhanbeg Vs. Shrikant Laxminarayan Zanwar: 2008-3 All MR 656 it is pointed out that an appeal would lie against only those findings that amount to a ‘decree’ or ‘order’ that falls under Section 96 or Section 100 CPC. Similarly, no appeal lies against an Order under Section 104 read with Order 43, Rule 1. In Bakerbag Subhanbeg earlier decisions were referred to in detail. It includes the following:

Midanpur Zamindari Co. v. Naresh Narayan Roy, AIR 1922 PC 241;
Run Bahadur Singh v. Lucnokoer, ILR (1885)11 Cal 301 (PC);
Pateswari Din v. Mahant Sarjudass, AIR 1938 Oudh 18;
Bansi Lal Ratwa v. Laxminarayan, 1969 2 AWR 246,
Arjun Singh v. Tara Das Ghosh, AIR 1974 Pat 1.

Res Judicata: The issue should have been necessary to be decided

In PMA Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, it is held as under:

“57. It is fairly settled that the finding on an issue in the earlier suit to operate as res judicate should not have been only directly and substantially in issue but it should have been necessary to be decided as well.”

It is the appellate decision that operates as res judicata

PMA Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, continued as under:

“When a decision is taken in appeal the rule is that it is the appellate decision and not the decision of the Trial Court that operates as res judicata.”

Appeal dismissed on limitation; Trial Court decision on merits ceases to be final

PMA Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, further continued as under:

“Where a suit is decided both on merits and on technical grounds by the Trial Court, and the appellate court maintains it on technical ground of limitation or suit being not properly constituted then the decision rendered on merits by the Trial Court ceases to have finality.
In Abdullah Ashgar Ali Khan v. Ganesh Dass AIR 1917 PC 201 the Court while considering the expression, `heard and finally decided’ in Section 10 of the British Baluchistan Regulation IX of 1896 held that where the suit was dismissed by two courts on merits but the decree was maintained in second appeal because the suit was not properly constituted then the finality on merits stood destroyed.” (The apex Court also referred to Sheosagar Singh & Ors. v. Sitaram Singh ILR 1897 Cal. Vol. XXIV. )
“58. The rationale of these decisions is founded on the principle that if the suit was disposed of in appeal not on merits but for want of jurisdiction or for being barred by time or for being defectively constituted then the finality of the findings recorded by the Trial Court on merits stands destroyed as the suit having been found to be bad for technical reasons it becomes operative from the date the decision was given by the trial court thus rendering any adjudication on merits impliedly unnecessary. “

Finding in Review Sustains; Other Earlier Findings Not Res Judicate

PMA Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, proceeded further as under:

“58. …. On the same rationale, once the Royal Court of Appeal allowed the Review Petition and dismissed the appeal as the ex-communication of Dionysius was contrary to principles of natural justice and he had not become heretic then the finding on authenticity of the canon etc. rendered in the original order was rendered unnecessary. Therefore, the finding recorded on the authenticity of the canon and power of the Patriarch etc. recorded in the earlier order could not operate as res judicate in subsequent proceedings.”

No Res Judicata on a Finding on Title, in an Injunction Suit and in Probate Action

An incidental finding will not constitute res judicata.

In Sajjadanashin Sayed v. Musa Dadabhai Ummer, (2000) 3 SCC 350, it is observed as under:

“24. Before parting with this point, we would like to refer to two more rulings. In Sulochana Amma v. Narayanan Nair [(1994) 2 SCC 14] this Court held that a finding as to title given in an earlier injunction suit would be res judicata in a subsequent suit on title. On the other hand, the Madras High Court, in Vanagiri Sri Selliamman Ayyanar Uthira-soma-sundareswarar Temple v. Rajanga Asari [AIR 1965 Mad 355 : ILR (1965) 1 Mad 232] held (see para 8 therein) that the previous suit was only for injunction relating to the crops. Maybe, the question of title 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 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 that the finding as to possession was substantially rested on title upon which a finding was felt necessary and in the latter case decided by the Madras High Court, it must be assumed that the tests were not satisfied. As stated in Mulla, 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 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:
“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 issue actually or necessarily involved, the judgment is not conclusive on the question of ownership or title.””
(Quoted and followed in: M.S. Ananthamurthy v. J. Manjula, Neutral Citation: 2025 INSC 273; 27.02.2025)

The Apex Court (Sulochana Amma Vs. Narayanan Nair, (1994) 2 SCC 14) also pointed out as under:

“The decision in earlier case on the issue between the same parties or persons under whom they claim title or litigating under the same title, it operates as a res-judicata. A plea decided even in a suit for injunction touching title between the same parties, would operate as res-judicata. It is a settled law that in a Suit for injunction when title is in issue, for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties when the same is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit, the decree in injunction suit equally operates as a res-judicata.”

“21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:
(a) Where a cloud is raised over the plaintiff’s title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff’s title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff’s lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar [Annaimuthu Thevar v. Alagammal, (2005) 6 SCC 202] ). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.”
(Quoted and followed in: M.S. Ananthamurthy v. J. Manjula, Neutral Citation: 2025 INSC 273; 27.02.2025)

(Both, Sulochana Amma and Anathula Sudhakar are referred to in T. Ravi Vs. B. Chinna Narasimha, 2017-7 SCC 342)

In Hem Nolini Judah v. Isolync Saroibashini Bose, AIR 1962 (SC) 1471, it was held that questions of title are not decided in proceedings for the grant of probate or letters of administration.

See Blog: No Res judicata on Finding on Title in an Injunction Suit
Declaration and Injunction

Appellate Decision Operates As Res Judicata

Decree of a lower court merges with the decree of the appellate court. Hence appellate decree is to be looked into to determine res judicata. In PMA Metripolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, it is observed as under:

“If the ex-communication of Dionysius was invalid for violation of principles of natural justice, as was found by the Bench reviewing the order, then the findings on earlier issues were rendered unnecessary and it is fairly settled that the finding on an issue in the earlier suit to operate as res judicata should not have been only directly and substantially in issue but it should have been necessary to be decided as well. For instance, when a decision is taken in appeal the rule is that it is the appellate decision and not the decision of the Trial Court that operates as res judicata. Consequently where a suit is decided both on merits and on technical grounds by the Trial Court, and the appellate court maintains it on technical ground of limitation or suit being not properly constituted then the decision rendered on merits by the Trial Court ceases to have finality. In Abdullah Ashgar Ali Khan v. Ganesh Dass AIR 1917 PC 201 the Court while considering the expression, `heard and finally decided’ in Section 10 of the British Baluchistan Regulation IX of 1896 held that where the suit was dismissed by two courts on merits but the decree was maintained in second appeal because the suit was not properly constituted then the finality on merits stood destroyed. In Sheosagar Singh & Ors. v. Sitaram Singh ILR 1897 Cal. Vol. XXIV where parentage of defendant was decided in his favour by the Trial Court but the High Court maintained the order as the suit was defective the claim of the defendant in the latter suit that the finding on parentage operated as res judicata was repelled and it was held, that the question of parentage had not been heard and finally decided in the suit of 1885. The appeal in that suit had put an end to any finality in the decision of the first Court, and had not led to a decision on the merits.”

Res Judicata on Ex Parte Decree

An ex-parte decree might also will constitute res judicata if the defendant had express notice of the pleadings and the prayer that a particular issue or matter would be decided.

(State of UP v. Jagdish Saran Agrawal: AIR 2008 SC 817;
Raj Lakshmi Dasi v. Banamali Sen – AIR 1953 SC 33;
Ram Gobinda Dawan v. Bhaktabala – AIR 1971 SC 664;
Pandurang v. Shantabai – AIR 1989 SC 2240;
Thiruvengadam Mammad v. Chathamkara Ammad – AIR 1929 Madras 89;
H.R C.E. Commissioner v. V. Krishnaswami – AIR 1975 Madras 167).

Whether a Consent/Compromise Decree Operates as Res judicata

In Pulavarthi Venkata Subbarao v. Valluri Jagannadha Rao, AIR 1967 SC 591, the Supreme Court observed as under:

“….A compromise decree is not a decision by the Court. It is acceptance by the Court of something to which the parties had agreed. The decree merely sets the seal of the Court on the agreement of the parties. The Court does not decide anything. Nor can it be said that the decision of the Court was implicit in it. Only that decision by the Court can be res judicata where the case has been heard and decided on merit . … the statutory prohibition under Sec. 11 of the code of civil procedure or that of constructive res judicata would apply as a matter of public policy ….. Such a decree cannot strictly be regarded as a decision on the matter which was heard and finally decided, and cannot operate as res judicata. ..”.
See also: Daryao v. State of UP, 1962- I SCR 574;
Vidya Sagar v. Sudesh Kumari, 1976-1 SCC 115;
Jamia Masjid v. K. V. Rudrappa, AIR 2021 SC 4523; 2022-9 SCC 225.

It is held in Baldevdas Shivlal v. Filmistan Distributors (I) P. Ltd., AIR 1970 SC 406, that ‘a matter in contest in a suit may operate as res judicata only if there is an adjudication by the Court’.

Ratio Decidendi is the Binding Precedent; Not Findings on Facts or Issues

In Jagdish Prasad v. State of MP, 2004(4) MPLJ 537, it was held by the Supreme Court as under:

“Any observation made or relief given by a Court, out of sympathy, compassion, sentiments and not based on any discernible principle of law or de hors the merits of the case, cannot be a binding precedent. A judgment of a Court contains three parts :
- (i) finding of facts;
- (ii) statement of principle of law applicable to the legal problem raised on the facts, based on which the case is decided; and
- (iii) decision which is based on the finding of fact, applicable principles of law, and in some cases, discretion and the need to mould the relief in a particular manner.
Out of the three parts, it is only the second part, that is ratio decidendi or statement of law applied and acted upon by the Court, that is a binding precedent. Neither the findings on facts nor the ultimate decision, that is, the relief given or the manner adopted to dispose of the case, is a precedent.” (Quoted in: Satpura Narmada Kshetriya Gramin Bank, Chhindwara v. A. K. Chaturvedi, 2012-1 JLJ 78; 2012-1 MPLJ 282)

In A-One Granites v. State of U.P. [(2001)3 SCC 537], the Supreme Court observed that where no consideration was given to the question, the decision cannot be said to be binding; and precedents sub silentio and without arguments are of no moment. (Referred to in: Satpura Narmada Kshetriya Gramin Bank, Chhindwara v. A. K. Chaturvedi, 2012-1 JLJ 78; 2012-1 MPLJ 282.)

Res Judicata Binds Parties; Ratio Decidendi (as Binding Precedent) Binds Courts

In The Modern English Legal System (4th Edition) by Smith, Bailey and Gunn (Sweet & Maxwell, 2002), pages 518-519, says as under:

“…. Thus the Court’s order is binding on the parties under the res judicata doctrine; the ratio decidendi is binding on other Courts in accordance with the principles outlined above under the doctrine of binding precedent. A startling illustration of the distinction was provided by the following series of cases. A testator, John Arkle Waring, left annuities to Mr. Howard and Mrs. Louie Burton-Butler ‘free of income tax’. In 1942 the Court of Appeal in Re warning, Westminster Bank Ltd. v. Awdry : (1942) Ch. 426 on an appeal in which Howard was a party, held that income tax had to be deducted. Louie was not a party as she was in an enemy occupied country. Leave to appeal to the House of Lords was refused. Four years later the House of Lords in Berke¬ley v. Berkeley : (1946) A.C. 555 overruled the Awdry case. Subsequently, Jenkins J. held that the Awdry case was res judica¬ta so far as Howard was concerned notwithstanding that its ratio had been overruled in Berkeley v. Berkeley and that Louie’s annuity would be dealt with in accordance with the later case. (See Re Warning, Westminster Bank v. Burton-Butler : (1948) Ch. 221).”
(Quoted in: Kalinga Mining Corporation v. Union of India (AK Ganguly, CJ, then) 2007-104 CLT 737, Ori)

Spencer Bower, Turner and Handley’s Commentary on the Doctrine of res judicata (Butterworths: London, Edinburgh, Dublin – 1996, pages 8 and 9), explains the concept of res judicata as under:

“There is an essential difference between res judicata estoppel and the doctrine of judicial precedent. Under the former a final decision in fact or law by any Court having jurisdiction precludes either party (except on appeal) from again raising the same issue against the other in any Court. The doctrine of judicial precedent, on the other hand, is not concerned with issues between parties. …
The difference is illustrated by the cases of Re Waring decided in 1942 and 1948. In the first Farwell J held that Section 25 of the Finance Act 1941 was not applicable (1942) Ch. 309 to an annuity; but the Court of Appeal reversed this decision. (1942) Ch. 426. The effect was two-fold; it decided as res judicata between the parties that Section 25 applied, and it bound Courts up to the Court of Appeal in other cases. In Berkeley v. Bekeley (1946) AC 555, the House of Lords overruled Re Waring. In 1948 the trustees sought a decision as between themselves and the annuitant who had not been joined in the first proceedings. (1948) Ch. 221. The other annuitant remained bound by the earlier decision, but the result (see Duke of Bedford v. Elliz : (1901) AC 1 at 8), was otherwise governed by Berkeley v. Berkeley: Gisborne Sheepfarmers’ Mercantile Co. Ltd. v. IRC : (1962) NZLR 810 at 814.” (Quoted in: Kalinga Mining Corporation v. Union of India (AK Ganguly, CJ, then) 2007-104 CLT 737, Ori)

In State of M.P. v. Mulam Chandi, AIR 1973 MP293, it has been held as under:

“As between a decision which operates a s res judicata and a decision which is binding as a precedent but not res judicata, the former must prevail.”

Interpretation of a Document can Be A Binding Judicial Precedent

In Sahu Madho Dass v. Mukand Ram, 1955 AIR SC 481, it was observed out as under:

“Mukand Ram was not a party to that litigation and the decision does not bind him but it operates as a judicial precedent about the construction of that document, a precedent with which we respectfully agree.”
(Referred to in: Syed Hafiz Mir v. Abdul Nayeemkhan, AIR 1960 MP 50; Potluri Saraswathi v. Vallabhaneni Veerabhadra Rao, 2004-7 ALT 120; Harabati v. Jasodhara Debi, AIR 1977 Ori 143; Ramachandra Bhat v. Srideviamma, AIR 1976 Kar 217; Katragadda China Anjaneyulu v. Kattragadda China Ramayya, 1965 AIR AP 177.)

In R. V. Bhupal Prasad v. Saleha Begum, 2002 Supp2 ALD 735; 2001-5 ALT 770, it is pointed out that in Anjaneyulu v. Ramaiah, 1965-1 ALT 149, a Full Bench of the Andhra High Court held that interpretation of a material document in a prior proceeding between the same parties even if does not operate as res judicata would be a binding judicial precedent in a subsequent proceeding between the parties based on that document.

Even an erroneous decision operates as Res Judicata

In Bindeswari v. Bageshwari, AIR 1936 PC 46, it was held as under:

“Where the decision of the Court in a previous suit determined that the section had never applied to a transaction, a Court in a new suit between the same parties with regard to the same transaction cannot try a new the issue as to its applicability in face of the express prohibition in Section 11 of the Code. “

In Mohanlal Goenka v. Benoy Kishna, AIR 1953 SC 65 it was laid down as under:

“(23) There is ample authority for the proposition that even an erroneous decision on a question of law operates as res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. A decision in the previous execution case between the parties that the matter was not within the competence of the executing court even though erroneous is binding on the parties; see Abhoy Kanta Gohain v. Gopinath Deb Goswami AIR 1943 Cal. 460.”

No Binding Precedent if relevant statutory provision was Not considered

In Union of India v. Maniklal Banerjee, AIR 2006 SC 2844, the Apex Court has held as under:

“It is now well-settled that if a decision has been rendered without taking into account the statutory provision, the same cannot be considered to be a binding precedent. This Court, in Pritam Singh, while exercising its discretionary jurisdiction, might have refused to interfere with the decision. The same, therefore, did not constitute any binding precedent.” (Referred to in: Hameeda Begum v. Champa Bai Jain (Arun Misra, J.), ILR 2009 MP 2328; 2009-3 MPLJ 472)

Arun Misra, J., referred to the House of Lords’ decision in Hameeda Begum v. Champa Bai Jain, ILR 2009 MP 2328; 2009-3 MPLJ 472, and said as under:

“(35) Another decision relied upon is rendered by the House of Lords in Watt vs. Ahsan (2007) UKHL 51. In the aforesaid case, question arose on Section 12 of the Race Relations Act, 1976. The submission was made that they were party and that All vs. Mcdonagh (2002) ICR 1026 was wrongly decided. In any case, the interpretation given to Section 12 by the EAT in Sawyer v. Ahsan (2000) ICR 1 is res judicata between him and the Labour Party, not only for the purposes of his first complaint but for the other two as well. It was opined that the EAT was wrong in Sawyer vs. Ahsan (2000) ICR 1 to hold that the Labour Party was a qualifying body, but there was no appeal against the decision of EAT , it was held that decision was binding upon the parties though wrong in law. When the Tribunal was-having the jurisdiction to decide the question, it is binding upon the parties though erroneous.
There is no dispute with the aforesaid proposition, but here we are concerned with the fresh cause of action on which suit is based and previously relevant statutory provision of Section 111 (d) of TP Act was not taken into consideration, question of determination of tenancy was also not decided.”

Exceptions to the Rule of Res Judicata

Arun Misra, J., pointed out as regards Rule of Res Judicata, in Hameeda Begum v. Champa Bai Jain, ILR 2009 MP 2328; 2009-3 MPLJ 472 (referring to State of MP. v. Mulamchand 1973 MPLJ 832), as under:

( 36 ) …. The rule admits of certain exceptions.
- One is that where the decision relates to the jurisdiction of the Court to try the earlier proceeding, it will not operate as res judicata if in the subsequent suit it is found to be erroneous because the question of jurisdiction is unrelated to rights claimed by one party and denied by other.
- Another exception is where the law is altered since the earlier decision, the earlier decision will not operate as res judicata between the same parties.
- Third exception is that a decision of a Court sanctioning something which is illegal does not operate as res judicata, and a party affected by the decision is not precluded from challenging its validity.
In the instant case, the earlier decisions rendered by this Court were not on the question of law of merger of tenancy into co-ownership and section 111 (d) of the TP Act was not considered, thus, it cannot be said to be operating as res judicata in the present suit based on fresh cause of action of ejectment of tenant and title. Tenant has protection under Rent Act, he can be evicted only on availability of ground under Section 12 of the Act. It is a question pertaining to jurisdiction to evict. There is no finding of fact which is coming in the way in the instant suit. The main question is that of the status of the defendants and beyond iota of doubt, they are tenants and tenancy is not determined by the fact that only portion of the property had been purchased by one of the heirs of the original tenant.”

Whether O. I, r. 8 Decree is Res Judicata

Order I rule 8 of the Code of Civil Procedure, 1908, enables the plaintiffs to file a suit in a representative capacity for the benefit of a class of (numerous) persons.

Whether the decree in such a suit operates as res judicata against the persons who are represented remains as a controversy. In any event, by the insertion of Sub-rule (6) to rule 8 of Order I, in 1976, it became legitimate to say that the decree stands as res judicata. Sub-rule (6) lays down that a decree passed in a suit under rule 8 shall be binding on all persons on whose behalf or for whose benefit the suit is instituted or defended.

Therefore, the view taken in Srinivasa Aiyankar v. Aryar Srinivasa Aiyankar, (1910) ILR 33 Mad 483 : 6 IC 229, that the decisions do not bind on those who were not actually (eo nominee) parties (and hence not res judicata and not enforceable in execution) does not hold good at present. This view in Srinivasa Aiyankar had been taken in following cases (prior to 1976) also:

Sahib Thampi v. Hamid, 36 Mad. 414
Walker v. Sur, 1914-2 KB 930
Hardie and Lane Limited v. Chiltern, 1928-1 KB 663
Kodia Goundar v. Velandi Goundar. AIR 1955 Mad 281

It is noteworthy that even when Sub-r. (6) of r. 8 of O. I was not available in the Code, it was observed in Waryam Singha v. Sher Singh, AIR 1942 Lah 136, that the decree for injunction could be executed against any of the persons who were represented under O. 1 r. 8 CPC; because, all the persons who were represented must be held to be parties as the decree obtained in such a suit was binding on all of them. This view is taken in following cases also:

Mool Chandra Jain v. Jagdish Chandra Joshi, AIR 1955 All 385
Abdulla v. Parshotam Singh, AIR 1935 Lah 33
Jatindra Mohan Banerje v. Kali Charan, AIR 1960 Cal 623

Relying on Shri V. J. Thomas v. Shri Pathrose Abraham, AIR 2008 SC 1503, and Kodia Goundar Vs. Velandi Goundar, AIR 1955 Mad 281, the Kerala High Court has in Narayanan V. Periyadan Narayanan Nair, 2021 (3) KHC 211 (FB) held that execution of a decree is not possible if he was not impleaded as a defendant. The Full Bench overruled James Vs. Mathew (ILR 2012-4 Ker 753, 2012-4 Ker 640, 2012-4 Ker LT 666, 2012-4 KHC 604 ), which held that a decree for injunction obtained in a representative suit is binding on all persons for whose benefit the suit was defended, though they were not eo nomine parties to the suit; and that in case of wilful disobedience of such a decree by those persons for whose benefit the suit was defended, it is enforceable against them under r. 32 of O. XXI of the Code.

See Blog: Decree in OI R8 CPC-Suit & Eo-Nomine Parties

Res Judicata, Order II Rule 2 Bar and Sec. 10 CPC

Sec. 11 CPC and Order II rule 2 CPC bar suit/relief. But, Sec. 10 CPC bars trial only. Because:

Sec. 11 CPC (Res Judicata) begins as – “No Court shall try any suit or issue”.
Order II Rule 2 bars to – “sue for any relief omitted“.
Sec. 10 CPC (Res sub judice – Latin: ‘under judgment’) begins as – “No Court shall proceed with the trial of any suit“.

See Blog: Order II, Rule 2 CPC – Not to Vex Defendants Twice for the Same Cause of Action

Change of Law and Res judicata

When the law has been changed, subsequent to a decision rendered by a Court, it is held in Alimunnissa Chowdharani v. Shyam Charan Roy, 1905-1 CLJ 176, that the earlier decision would not operate as res judicata.

In Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy, 1970-1 SCC 613, it is observed that when the law has undergone a change, there would be no question of res judicata or constructive res judicata. It is observed as under:

“5. But the doctrine of res judicata belongs to the domain of procedure: it cannot be exalted to the status of a legislative direction between the parties so as to determine the question relating to the interpretation of enactment affecting the jurisdiction of a Court finally between them, even though no question of fact or mixed question of law and fact and relating to the right in dispute between the parties has been determined thereby. A decision of a competent Court on a matter in issue may be res judicata in another proceeding between the same parties: the “matter in issue” may be an issue of fact, an issue of law, or one of mixed law and fact. An issue of fact or an issue of mixed law and fact decided by a competent court is finally determined between the parties and cannot be reopened between them in another proceeding. The previous decision on a matter in issue alone is res judicata: the reasons for the decision are not res judicata. A matter in issue between the parties is the right claimed by one party and denied by the other, and the claim of right from its very nature depends upon proof of facts and application of the relevant law thereto. A pure question of law unrelated to facts which give rise to a right, cannot be deemed to be a matter in issue. When it is said that a previous decision is res judicata, it is meant that the right claimed has been adjudicated upon and cannot again be placed in contest between the same parties. A previous decision of a competent Court on facts which are the foundation of the right and the relevant law applicable to the determination of the transaction which is the foundation of the right and the relevant law applicable to the determination of the transactions which is the soured of the right is res judicata. A previous decision on a matter in issue is a composite decision: the decision of law cannot be dissociated from the decision on facts on which the right is founded. A decision on an issue of law will be as res judicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceeding, but not when the cause of action is different, nor when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the Court to try the earlier proceeding, nor when the earlier decision declares valid a transaction which is prohibited by law. …….
7. Where the law is altered since the earlier decision, the earlier decision will not operate as res judicata between the same, parties: Tarini Charan Bhattacharjee’s case. It is obvious that the matter in issue in a subsequent proceeding is not the same as in the previous proceeding, because the law interpreted is different.”

Can res judicata be raised as a preliminary point/issue

The Kerala High Court in V. Narayana Bhakthan v. The President, Anantha Narayanapuram, 2008-3 Ker LT 840 it is held as under:

“The question of res judicata can be raised as a preliminary point in certain circumstances. Sub-rule (2) of Rule 2 of Order XIV of the CPC states that where issues, both of law and of fact, arise in the same suit, and the Court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to: (a) the jurisdiction of the Court, or (b) a bar to the suit created by law for the time being in force. The said sub-rule also provides that the Court may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue. In ML Sethi v. RP Kapur, AIR 1972 SC 2379, it was held that it is well settled that a plea of res judicata is a plea of law which concerns the jurisdiction of the court and a finding on the plea in favour of the party raising it would oust the jurisdiction of the court. If the question of res judicata can be decided without reference to the disputed questions of fact and without the necessity of there being any evidence to be adduced, the Court would be justified in dealing with the said contention as a preliminary issue. However, if the Court finds that disputed questions of fact are involved or that the plea of res judicata is a mixed question of law and fact, the Court is not bound to decide the said question as a preliminary issue.”

Effect of failure to raise bar of res judicata as a preliminary issue

In V. Narayana Bhakthan v. The President, Anantha Narayanapuram, 2008-3 Ker LT 840, it is held, further as under:

Even if a party, who is entitled to request the court to consider the contention of res judicata as a preliminary issue, fails to make a request in that behalf at the appropriate time, that does not operate as a bar for him to raise the contention of res judicata at the final stage of the suit. Such a contention would not be barred by res judicata by his not requesting the same to be considered as a preliminary issue. On the other hand, if such a question is raised as a preliminary issue and a decision is rendered against the party raising it, he would be precluded at a later stage of the same proceeding from raising the very same contention that the suit is barred by res judicata except by challenging the final decision in Appeal.”

S. Nagaraj (dead) by LRs. VS B. R. Vasudeva Murthy, 08 Feb 2010
2010 2 AIR(Kar)(R) 274; 2010 Supp AIR(SC) 551; 2010 0 AIR(SCW) 1519; 2010 2 JT 185; 2010 3 KarLJ 513; 2010 Supp1 KLT 95; 2010 2 Scale 232; 2010 3 SCC 353; 2010 1 SCC(Civ) 695; 2010 4 SCJ 258; 2010 2 SCR 586; 2010 2 SLT 441; 2010 0 Supreme(SC) 140;

Correctness of the Finding has no bearing

Rankin, C.J. of the Calcutta High Court in Tarini Charan Bhattacharjee v. Kedar Nath Haldar,AIR 1928 Cal. 777 held as under:

“The question whether decision is correct or erroneous has no bearing upon the question whether it operates or does not operate as res judicata.”

Res Judicata in Writ Proceedings

Our Apex Court observed in State of Tamil Nadu v. State of Kerala, AIR 2014 SC 2407; 2014-12 SCC 696as under:

“156. The rule of res judicata is not merely a technical rule but it is based on high public policy. The rule embodies a principle of public policy, which in turn, is an essential part of the rule of law. In Duchess of Kingston; 2 Smith Lead Cas 13 Ed. Pp. 644, 645, the House of Lords (in the opinion of Sir William de Grey) has observed:
- “From the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true: first, that the judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive, between the same parties, upon the same matter, directly in question in another court; secondly, that the judgment of a court of exclusive jurisdiction, directly upon the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another court, for a different purpose.”
157. Corpus Juris explains that res judicata is a rule of universal law pervading 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; and the other, the hardship on the individual that he should be vexed twice for the same cause.
158. In Sheoparsan Singh v. Ramnandan Prashad Narayan Singh; [AIR 1916 PC 78], Sir Lawrence Jenkins noted the statement of law declared by Lord Coke, ‘interest reipublica ut sit finis litium,’ otherwise great oppression might be done under colour and pretence of law. – (6 Coke, 9A.)
159. In Daryao and Ors. v. State of U.P. and Ors.; [AIR 1961 SC 1457], P.B. Gajendragadkar, J. while explaining the rule of res judicata stated that on general considerations of public policy there seems to be no reason why rule of res judicata should be treated as inadmissible or irrelevant while dealing with the petitions filed under Article 32 of the Constitution. P.B. Gajendragadkar, J. referred to earlier decision of this Court in Pandit M.S.M. Sharma v. Dr. Shree Krishna Sinha and Ors.; [AIR 1960 SC 1186] wherein the application of the rule of res judicata to a petition filed under Article 32 was considered and it was observed that the question determined by the previous decision of this Court cannot be reopened and must govern the rights and obligations of the parties which are subsequently the same.
160. In Gulab Chand Chhotalal Parikh v. State of Bombay; [(1965) 2 SCR 547], this Court stated that a decision in a writ petition is res judicata in a subsequent suit.
161. In Union of India v. Nanak Singh; [(1968) 2 SCR 887 : AIR 1968 SC 1370] the question whether the decision in a writ petition operates as res judicata in a subsequent suit filed on the same cause of action has been settled. In Nanak Singh, this court observed that there is no good reason to preclude decisions on matters in controversy in writ proceedings under Article 226 or Article 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and, thus, to give limited effect to the principle of finality of decision after full contest.
162. Union of India v. Nanak Singh; [(1968) 2 SCR 887 : AIR 1968 SC 1370] has been followed by a three Judge Bench of this Court in State of Punjab v. Bua Das Kaushal; [ (1970) 3 SCC 656]. In our view, the rule of res judicata which is founded on public policy prevents not only a new decision in the subsequent suit but also prevents new investigation. It prevents the defendant from setting up a plea in a subsequent suit which was decided between the parties in the previous proceedings. The legal position with regard to rule of res judicata is fairly well-settled that the decision on a matter in controversy in writ proceeding (Article 226 or Article 32 of the Constitution) operates as res judicata in subsequent suit on the same matters in controversy between the same parties. For the applicability of rule of res judicata it is not necessary that the decision in the previous suit must be the decision in the suit so as to operate as res judicata in a subsequent suit. A decision in previous proceeding, like under Article 32 or Article 226 of the Constitution, which is not a suit, will be binding on the parties in the subsequent suit on the principle of res judicata.
163. For the applicability of rule of res judicata, the important thing that must be seen is that the matter was directly and substantially in issue in the previous proceeding and a decision has been given by the Court on that issue. A decision on issue of fact in the previous proceeding – such proceeding may not be in the nature of suit – constitutes res judicata in the subsequent suit.
164. In light of the above legal position, if the 2006 judgment is seen, it becomes apparent that after considering the contentions of the parties and examining the reports of Expert Committee, this Court posed the issue for determination about the safety of the dam to increase the water level to 142 ft. and came to a categorical finding that the dam was safe for raising the water level to 142 ft. and, accordingly, in the concluding paragraph the Court disposed of the writ petition and the connected matters by permitting the water level of Mullaperiyar dam being raised to 142 ft. and also permitted further strengthening of the dam as per the report of the Expert Committee appointed by the CWC. The review petition filed against the said decision was dismissed by this Court on 27.7.2006. The 2006 judgment having become final and binding, the issues decided in the said proceedings definitely operate as res judicata in the suit filed under Article 131 of the Constitution.
165. Shri Harish Salve, learned senior counsel for Kerala, placed reliance upon the decision of this Court in N.D. Jayal and Anr. v. Union of India and Ors.; [(2004) 9 SCC 362]. In N.D. Jayal69 Dharmadhikari, J. made general observations on the dam safety aspect that plea like res judicata on the earlier decisions passed by the Supreme Court cannot be allowed to be raised. The observations made by Dharmadhikari, J. in N.D. Jayal have to be read as an exception to the res judicata rule in the matters where, by their very nature, the factual situation has drastically changed in course of time. If substantial changes in the circumstances occur and such circumstances are shown to the Court necessitating departure from the earlier finding on the issue of safety, the Court can be approached and in that event the Court itself may exercise its discretion to reopen the safety aspect having regard to the drastic change in circumstances or in emergent situation as to the safety of dam. In our view, a judicial decision, having achieved finality, becomes the last word and can be reopened in the changed circumstances by that Court alone and no one else.
166. On behalf of Kerala, it is contended that the jurisdiction of this Court under Article 32 of the Constitution for enforcement of the fundamental rights conferred by Part III of the Constitution is ousted or excluded in respect of disputes between two or more States: since such disputes fall within the ambit of the original jurisdiction of this Court under Article 131 of the Constitution or jurisdiction of a tribunal constituted under the provisions of Inter-State River Water Disputes Act, 1956 read with the provisions of Article 262 of the Constitution. Thus, it was submitted that the 2006 judgment is not binding and that the rule of res judicata can hardly be attracted in this situation.
167. We are unable to accept the submission of the learned senior counsel for Kerala. The label of jurisdiction exercised by this Court is not material for applicability of principles of res judicata if the matter in issue in the subsequent suit has already been concluded by the earlier decision of this Court between the same parties. The 2006 judgment was the result of judicial investigation, founded upon facts ascertained in the course of hearing. The plea of lack of jurisdiction of this Court was taken in the earlier proceedings on both the grounds, viz.,
(1) whether the jurisdiction of this Court is barred in view of Article 262 read with Section 11 of the Inter-State River Water Disputes Act, 1956, and
(2) whether Article 363 of the Constitution bars the jurisdiction of this Court. On both these questions the findings were recorded against Kerala. It is too much for Kerala to say that the 2006 judgment is without jurisdiction and not binding.
xxxxx
169. Explanations VII and VIII were inserted in the above provision by Code of Civil Procedure (Amendment) Act, 1976 w.e.f. 1.2.1977. Explanation VIII in this regard is quite relevant. The principles of res judicata, thus, have been made applicable to cases which are tried by Courts of limited jurisdiction. The decisions of the Courts of limited jurisdiction, insofar as such decisions are within the competence of the Courts of limited jurisdiction, operate as res judicata in a subsequent suit, although, the Court of limited jurisdiction that decided the previous suit may not be competent to try such subsequent suit or the suit in which such question is subsequently raised. If a decision of the Court of limited jurisdiction, which was within its competence, operates as res judicata in a subsequent suit even when the subsequent suit is not triable by it, a fortiori, the decision of the highest Court of the land in whatever jurisdiction given on an issue which was directly raised, considered and decided must operate as res judicata in the subsequent suit triable exclusively by the highest Court under Article 131 of the Constitution. Any other view in this regard will be inconsistent with the high public policy and rule of law. The judgment of this Court directly upon the point, is as a plea, a bar, or as evidence, conclusive between the same parties, upon the same matter, directly in question before this Court, though, label of jurisdiction is different.
170. The principles of res judicata are clearly attracted in the present case. The claim of Kerala in the earlier proceeding that water level cannot be raised from its present level of 136 ft. was expressly not accepted and the obstruction by Kerala to the water level in the Mullaperiyar dam being raised to 142 ft. on the ground of safety was found untenable. The judgment dated 27.2.2006 of this Court, thus, operates as res judicata in respect of the issue of safety of the dam by increasing its water level from 136 ft. to 142 ft.”

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