Har Narayan Tewari (D) Thr. Lrs vs Cantonment Board,Ramgarh Cantonm

2024 INSC 467 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.8829 OF 2010

HAR NARAYAN TEWARI (D) THR. LRS. …APPELLANT(S)

VERSUS

CANTONMENT BOARD, RAMGARH CANTONMENT & ORS. …RESPONDENT(S)

JUDGMENT

PANKAJ MITHAL, J.

1. Shri Manoj Goel, learned senior counsel for the appellants

and Shri Manoj Swarup, learned senior counsel for the

respondents were heard.

2. The Title Suit No.9/89 of the plaintiff-appellant (Har

Narayan Tewari) was decreed on 16.03.2000 by the court

of first instance. In an appeal by the Cantonment Board,

Ramgarh, the said decree was reversed by the First

Appellate Court vide judgment and order dated

Signature Not Verified 28.06.2006; basically on the ground that the suit was hit Digitally signed by Indu Marwah Date: 2024.07.08 16:35:55 IST Reason: by principle of res judicata in view of the decision in the

earlier Title Suit No.8/64 instituted by Maharani Lalita

1 Rajya Lakshmi1 (wife of Raja Bahadur Kamakshya

Narayan Singh2) wherein the plaintiff-appellant was

defendant No.32 and the Cantonment Board, Ramgarh

was the main contesting defendant. The Second Appeal

preferred by the plaintiff-appellant to the High Court was

dismissed on 01.04.2009 simply stating that it does not

raise any substantial question of law.

3. Aggrieved by the judgment and order of the High Court

dated 01.04.2009 dismissing the appeal; the plaintiff-

appellant has preferred this appeal and has also assailed

the judgment and order dated 28.06.2006 of the First

Appellate Court alleging that his suit was not barred by res

judicata and that he has validly acquired title and

possession over the disputed land.

4. The plaintiff-appellant had filed the above referred Title

Suit No.9/89 for declaration of his title over the properties

mentioned in Schedule ‘A’ of the plaint with structures and

buildings standing thereon and for confirmation of his

possession over the same. In the alternative, a prayer was

made that in case the plaintiff-appellant was not found in

1 Hereinafter referred to as “Maharani” 2 Hereinafter referred to as “Raja”

2 possession of the said property, the Cantonment Board,

Ramgarh, or any person claiming through it, be evicted

and he be put in possession with the further direction that

they be restrained by a decree of permanent injunction

from dispossessing the plaintiff-appellant from the said

property in future.

5. According to Schedule ‘A’ of the plaint, the dispute is about

two pieces of land: First, land measuring 0.12 acres out of

2.04 acres of Plot No.432; and secondly land measuring

0.18 acres out of 0.66 acres of Plot No.438 both situate in

village Ramgarh, within the Cantonment Board, Ramgarh

with boundaries as described in the Schedule. In short, the

dispute in the suit is only regarding 0.12 acres of Plot

No.432 and 0.18 acres of Plot No.438 i.e. total of 0.30 acres

of the above two plots and the structures existing thereon.

6. The plaintiff-appellant is claiming title and possession over

the suit land alleging that the Raja, the proprietor of the

village, had settled the aforesaid land measuring 0.30

acres of the land comprising of Plot Nos.432 and 438 in his

favour in the year 1942.

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7. The case of the plaintiff-appellant was that village

Ramgarh was the part of the Estate of Raja. It was under

the management of the Court of Wards and was released

in Raja’s favour in the year 1937. During the period of its

management by the Court of Wards, its manager acquired

5.38 acres of additional land comprised in various plots

including Plot Nos.432 and 438 in proceedings bearing

Case No.1/1926-27 and came in possession thereof.

8. The Raja in the year 1942 made a permanent raiyati

settlement of the suit land in favour of the plaintiff-

appellant and also delivered its possession to him on

payment of rent and salami of Rs.2,000/-. After vesting of

the Estate of Ramgarh in the State of Bihar, the name of

the plaintiff-appellant was mutated upon enhancement of

rent @ Rs.2/- per decimal by an order dated 04.01.1963 of

the Additional Collector, Ramgarh passed in Case

No.115/62-63 (Exh.13). The plaintiff-appellant had

constructed certain structures on the said land which have

been let out to various persons, all of whom are defendants

in the suit.

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9. Upon the establishment of the Cantonment Board,

Ramgarh, the ex-proprietor Raja handed over 2.55 acres of

land (excluding the suit land) with the dispensary building

etc. to the Cantonment Board temporarily. The

Cantonment Board, as such, never came in possession of

more than 2.55 acres of land that too which was other than

the land settled and occupied by the plaintiff-appellant.

10. In 1964, Maharani, the wife of the Raja, instituted a Title

Suit No.8/64, inter alia, for declaration of her title over

5.38 acres of the land of the village including 0.30 acres

land of the plaintiff-appellant. The aforesaid claim was

made on the basis of the maintenance grant allegedly

made by the Raja in her favour.

11. The aforesaid suit was contested by the plaintiff-appellant

by filing a written statement and claiming 0.30 acres land

on the basis of raiyati rights granted by the Raja in the

year 1942. The Cantonment Board, Ramgarh, claimed

distinct rights in different portions of the land to the extent

of 2.55 acres only, comprising of dispensary building and

quarters of the doctors on the basis of possessory rights

granted by the Raja.

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12. In the aforesaid case, Maharani entered into a compromise

with several defendants including the plaintiff-appellant

(who was defendant No.32 in the said suit). According to

the said compromise, Maharani admitted the possession

of the plaintiff-appellant over the suit land to the extent of

0.30 acres in Plot Nos.432 and 438 and it was agreed that

she will have no concern with the same and that the

plaintiff-appellant will remain in exclusive possession of it.

The Cantonment Board, Ramgarh did not object to it or

challenge the compromise.

13. In the said suit, as many as nine issues were framed

including the maintainability of the suit and about the

right, title and possession of Maharani. The suit of the

Maharani was dismissed vide judgment and order dated

31.03.1984, primarily on the ground that it was not

maintainable as the State of Bihar being a necessary party,

was not made a party and that Maharani had not entered

into the witness box to prove her case. She as such, was

not found to be the owner in possession of the land claimed

by her. The court in dismissing the suit clearly mentioned

that the parties who have entered into the compromise

6 with Maharani will not have any right on the basis of the

compromise deed as she herself has failed to prove her

independent rights over the land claimed by her.

14. The second appeal filed by the plaintiff-appellant was

dismissed by the High Court as it failed to raise any

substantial question of law, which is mandatory for

entertaining an appeal under Section 100 of the Code of

Civil Procedure. Therefore, the first point which arises for

consideration herein is - whether in the facts and

circumstances of the case, any substantial question of law

was involved in the second appeal.

15. The submission is that the plaintiff-appellant was non-

suited by the First Appellate Court, on the ground that his

suit was barred by res judicata. One of the essential

conditions for the applicability of principle of res judicata

as enshrined under Section 11 of the CPC is that the issue

in the earlier suit and the subsequent suit ought to be

directly and substantially the same. In the earlier Suit No.

8/64 instituted by Maharani, her claim was that she is the

lawful owner of the entire 5.38 acre of land of Village

Ramgarh, on the basis of the maintenance grant made in

7 her favour by the Raja. In the said suit, the plaintiff-

appellant was defendant no. 32 and the Cantonment

Board, Ramgarh was defendant No. 1. The claim set up by

Maharani was not accepted and ex-facie there was no

adjudication regarding the rights of the co-defendants over

the suit land viz 0.30 acres of land of plot Nos. 432 and

438 as claimed by the plaintiff-appellant in the present

suit. The limited issue therein was whether the Maharani

had acquired any right in the above entire property on the

basis of maintenance in grant alleged to be executed by the

Raja in her favour. There was no issue as to whether the

suit land as claimed by the plaintiff-appellant belonged to

him or was settled or not settled in his favour as claimed.

Thus, in the facts and circumstances of the case, a clear

substantial question of law as to whether the present suit

as filed by the plaintiff-appellant was barred under Section

11 CPC on principle of res judicata inasmuch as there was

no adjudication of the rights of the co-defendants in the

previous suit with regard to the suit land and the issue

therein was not directly or indirectly and substantially the

same as in the present suit.

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16. In view of the above, we are of the opinion that the High

Court manifestly erred in dismissing the second appeal in

limine on the ground that there was no substantial

question of law involved therein.

17. As stated earlier, the substantial question of law arising in

the second appeal was - Whether the suit as setup by the

plaintiff-appellant was barred by principle of res judicata in

view of the decision in the earlier Suit No. 8 of 64 wherein

rights of the co-defendants in respect of the suit land were

never adjudicated and non-acceptance of the claim of

Maharani was not sufficient so as to decide the rights of the

co-defendants.

18. There are no factual disputes which may require

consideration of any evidence so as to answer the above

substantial question of law. Therefore, we consider it

appropriate to decide the above substantial question of law

ourselves instead of leaving it for the High Court to

adjudicate it.

19. It is an admitted position that the suit land i.e., portions

of plot Nos. 432 and 438 were part of the Estate of Raja

who had acquired about 5.38 acres of additional land of

9 village Ramgarh. Maharani had claimed title over the

entire aforesaid land of village Ramgarh but her claim was

not accepted by the court in her Title Suit No.8/64. It

means that she was unable to establish her right, title and

interest over the said land on the basis of the alleged

maintenance grant made in her favour by the Raja, but it

does not mean that the suit land was not settled by the

Raja in favour of the plaintiff-appellant or that the suit

land had come to be settled with Cantonment Board,

Ramgarh in any manner.

20. The lis in the previous suit i.e. Suit No.8/64 was regarding

ownership and entitlement of Maharani over the entire

5.38 acres of land of village Ramgarh qua the Cantonment

Board, Ramgarh; the plaintiff-appellant and other

defendants in the said suit; whereas the controversy in the

present suit is quite distinct with regard to only 0.30 acres

of the suit land vis-à-vis the plaintiff-appellant and the

Cantonment Board, Ramgarh.

21. The judgment and order of the previous suit which is final

and conclusive, in no specific terms adjudicates upon the

right, title and interest of either of the plaintiff-appellant

10 or of the Cantonment Board, Ramgarh with regard to the

suit land. In the said suit, there was no issue with regard

to the right, title and possession of either the plaintiff-

appellant or of the Cantonment Board, Ramgarh and no

finding in this connection was returned by the court in

dismissing the said suit. In simple words, the suit, as filed

by Maharani claiming right, title and interest over 5.38

acres of land of village Ramgarh was dismissed simpliciter

without adjudication of any rights of the plaintiff-appellant

over the suit land vis-à-vis the Cantonment Board,

Ramgarh.

22. It may also be pertinent to point out that the Cantonment

Board, Ramgarh throughout had claimed rights over 2.55

acres of land of village Ramgarh and not in respect of the

entire 5.38 acres of land which was additionally acquired

by the Raja. It is also not the case of the Cantonment

Board, Ramgarh that the land which was temporarily

settled in its favour by the Raja has been occupied by the

plaintiff-appellant or that the plaintiff-appellant is

claiming rights over the land which was settled in its

favour. In other words, the land belonged to the Raja, part

11 of which was settled in favour of the plaintiff-appellant to

the extent of 0.30 acres of plot Nos. 432 and 438, whereas,

another piece of land measuring 2.55 acres with certain

structures but certainly excluding the suit land was settled

in favour of Cantonment Board, Ramgarh. The right of the

plaintiff-appellant to claim the suit land or the right of the

Cantonment Board over the 2.55 acres of land settled in

its favour never came to be adjudicated in previous Title

Suit No. 8 of 64.

23. The general policy behind the principle of res judicata as

enshrined under Section 11 CPC is to avoid parties to

litigate on the same issue which has already been

adjudicated upon and settled. This is in consonance with

the public policy so as to bring to an end the conflict of

interest on the same issue between the same parties. One

of the basic essential ingredients for applying the principle

of res judicata, as stated earlier also, is that the matter

which is directly and substantially in issue in the previous

litigation ought not to be permitted to be raised and

adjudicated upon in the subsequent suit. It is a settled law

that the principle of res judicata is applicable not only

12 between the plaintiff and the defendants but also between

the co-defendants. In applying the principle of res judicata

between the co-defendants, primarily three conditions are

necessary to be fulfilled, namely, (i) there must be a conflict

of interest between the co-defendants; (ii) there is necessity

to decide the said conflict in order to give relief to plaintiff;

and (iii) there is final decision adjudicating the said

conflict. Once all these conditions are satisfied, the

principle of res judicata can be applied inter se the co-

defendants.

24. In context with the above settled principle, though

reference can be made to several decisions starting from

that of Privy Council, but we consider it appropriate to

refer to only one of the latest decisions on the point

rendered by this Court in the case of Govindammal (Dead)

by Legal Representatives and Ors. vs. Vaidiyanathan

and Ors.3, wherein after considering all previous decisions

regarding application of principle of res judicata between

co-defendants, this Court culled out the above three

conditions for applying the same.

3 (2019) 17 SCC 433

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25. In the light of the above legal position, we find that there

was no conflict of interest between the co-defendants in

the earlier Suit No. 8 of 64 inasmuch as the plaintiff-

appellant was independently claiming rights over 0.30

acres of suit land whereas the Cantonment Board,

Ramgarh was claiming rights over 2.55 acres of the land

which formed part of the Estate of Raja without asserting

that the land settled in its favour is the same as claimed

by plaintiff-appellant or that there was any encroachment

upon the land settled in its favour. Even assuming that

there was some inter se conflicts between the co-

defendants with regard to the suit land, the adjudication

of the said conflict was not necessary for granting any relief

to Maharani who was the plaintiff in the suit. Since she

was claiming the entire Estate of 5.38 acres of land and

her claim was defeated as she was unable to prove the

grant of the said land in her favour with no specific finding

by the court regarding the claims set up by the co-

defendants, the inter se dispute of the co-defendants as

raised in the present suit never came to be adjudicated.

Thus, none of the conditions as laid down in Govindammal 14 (supra) between co-defendants stood fulfilled for applying

res judicata. In view of the aforesaid facts and

circumstances, we are of the opinion that the principle of

res judicata would not be attracted as the issue in the

present suit was neither directly or indirectly in issue in

the previous suit and there was no conflict of interest

between the co-defendants in the said previous suit which

if any never came to be adjudicated upon. Accordingly, the

suit as filed by the plaintiff-appellant claiming title over the

suit land against the Cantonment Board, Ramgarh is not

barred under Section 11 CPC.

26. Having said so, we proceed to examine the respective

claims of the parties on merits, treating the suit as

maintainable and not barred by res judicata.

27. The plaintiff-appellant has set up his claim over the suit

land as described in Schedule ‘A’ to the plaint. The said

schedule mentions 0.12 acres of land of plot No.432 and

0.18 acres of land of plot No.438 totaling 0.30 acres of land

situate in village Ramgarh. There is no dispute that during

the said period the Estate of the Raja was under the

management of Court of Wards, its manager had acquired

15 5.38 acres of additional land including the suit land and

the same was added to the Estate of the Raja. In the year

1942, the Raja had settled the aforesaid land in favour of

the plaintiff-appellant on 18.10.1942. It was followed by

Hukumnama dated 07.04.1943 (Exh.9) which confirmed

the above settlement.

28. The above settlement was confirmed by the Additional

Collector, Hazaribagh on enhancement of rent @ Rs.2/-

per decimal some time in the year 1963 and had started

realizing rent from the plaintiff-appellant accordingly.

29. There is no dispute by any person claiming rights under

the Raja that the aforesaid land was not so settled in

favour of the plaintiff-appellant. The Maharani had

claimed the entire 5.38 acres of land on the basis of the

maintenance grant executed by Raja in her favour but her

aforesaid claim was not accepted. The Cantonment Board,

Ramgarh on the other hand had staked its claim only in

respect of 2.55 acres of land forming part of 5.38 acres of

the land but has nowhere claimed any right, title and

interest over the suit land as claimed by the plaintiff-

appellant. The Cantonment Board only on the basis of the

16 judgment and order dated 16.03.2000 passed in Title Suit

No.8/64 alleges that it has been recognized to be the owner

of the entire 5.38 acres of land by adverse possession and,

therefore, the plaintiff-appellant has no subsisting right in

the suit land. The Cantonment Board further contends

that the entire 5.38 acres of land was leased out by the

Raja on 02.06.1931 for a period of 15 years to the Dublin

University Mission and, therefore, no part of it could have

been settled by him in favour of the plaintiff-appellant in

the year 1942.

30. In respect to the second aspect as raised on behalf of the

Cantonment Board, it is necessary to note that no material

or evidence was adduced by the Cantonment Board to

establish that the entire 5.38 acres of land was transferred

by way of lease to Dublin University Mission; not even any

oral evidence was adduced to prove such a transfer

restricting the right of the Raja to settle the land in favour

of the plaintiff-appellant. Even otherwise assuming there

was such a lease, it would have expired in June 1946 on

completion of 15 year period in which case the settlement

of 1942 and the Hukumnama of 1943 being valid would

17 revive and continue in favour of the plaintiff-appellant,

more particularly with its confirmation by the Additional

Collector and mutation in 1963.

31. In context with the first contention that in Title Suit

No.8/64, possession of the Cantonment Board over the

entire 5.38 acres was accepted by adverse possession, it

would be pertinent to note that on perusal of the said

judgment and order and decree would reveal that the court

of first instance in the said suit has not given any finding

with regard to the claim to the plaintiff-appellant (who was

defendant No.32 in the said suit) nor with regard to the

claim set up by the Cantonment Board. It is misconceived

to contend that the said judgment and order accepts the

title of the Cantonment Board by adverse possession on

the entire 5.38 acres of land. In the said suit, the

Cantonment Board had claimed rights only in respect of

the part of the aforesaid 5.38 acres of land to the extent of

2.55 acres and, therefore, any observation of the trial court

regarding adverse possession of the Cantonment Board

would be deemed to be in respect of the claim as set up by

the Cantonment Board and would not be construed to be

18 in connection with the entire 5.38 acres of land so as to

include the land of the plaintiff-appellant.

32. The written statement of the Cantonment Board itself as

filed in Title Suit No.8/64 (Exh.12) makes it abundantly

clear that upon the establishment of the Cantonment

Board as a temporary measure in the year 1941, the Raja

on being approached permitted it on 06.11.1941 to use

2.55 acres of land consisting of the dispensary building

and other structures along with adjoining land to be used

by the Cantonment Board for a period of six months which

was extended up to 31.12.1943. There was no other

settlement of any land in favour of the Cantonment Board

and the Cantonment Board was in permissive possession

of only 2.55 acres of land out of the 5.38 acres of the entire

land of village Ramgarh. The land settled in favour of the

plaintiff-appellant and that in favour of the Cantonment

Board by the Raja were distinct and as such there was no

apparent conflict between them.

33. The plaintiff-appellant by sufficient evidence has proved

the settlement of the suit land by the Raja in his favour. It

stands proved by the Amin report (Exh.8) dated 15.04.1942

19 and the Hukumnama (Exh.9) dated 07.04.1943 as well as

the Rent receipt (Exh.6, 6/A and 7). The order of the

Additional Collector, Hazaribagh dated 07.01.1963

(Exh.16) directing realization of rent from the plaintiff-

appellant also confirms the above settlement and its

subsequent approval by the State on enhancement of rent.

All these documents have not been confronted by the other

side. The fact that the name of the plaintiff-appellant was

also mutated in the revenue records proves it beyond

doubt, in the absence of any contrary evidence that he is

in possession of the suit land. It may also be worth noting

that in the earlier suit, the Cantonment Board has

accepted that the plaintiff-appellant has been realizing

rent of the shops existing over the suit land from the

tenants.

34. In view of the aforesaid overwhelming unconfronted

evidence, the First Appellate Court manifestly erred in

reversing the finding of the court of first instance that the

plaintiff-appellant is in settled possession of the suit land

and he has successfully proved his ownership rights over

the same.

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35. Accordingly, the judgment and order of the High Court

dated 01.04.2009 and that of the First Appellate Court

dated 28.06.2006 are hereby set aside and the judgment

and order dated 16.03.2000 passed by the trial court is

restored decreeing the title suit of the plaintiff-appellant

but with no order as to costs.

36. The appeal is allowed.

……………………………….. J.

(ABHAY S. OKA)

……………………………….. J.

(PANKAJ MITHAL) NEW DELHI;

JULY 08, 2024.

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