Saturday, 25 June 2016

Whether second suit will be hit by res judicata if cause of action in both suits are different?

The suit filed by the plaintiff in 1962, based on the
settlement deed executed by her husband in her favour and
the sufferance of the dismissal of the suit, will not, in any way,
be a bar for making a claim for her share, if any, of the family
property, if otherwise permissible under law. As succinctly
addressed by the first appellate court, the 1962 suit for the
entire property was based on a settlement deed and it was a
suit for possession. Whereas, the 1988 suit for partition was for
plaintiff’s one-half share in the property based on her birth
right. Cause of action is entirely different. Thus, the High Court in our opinion is not right on the
point of res judicata.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 1858-1859 OF 2016
(Arising from S.L.P. (C) Nos. 10449-10450/2009)
NAGABHUSHANAMMAL (D) BY LRS. 
VERSUS
C. CHANDIKESWARALINGAM 
Citation:(2016) 4 SCC 434

KURIAN, J.:

Delay condoned. Substitution allowed. Leave granted.
2. Res judicata, partition, ouster and adverse possession are
the four principles interestingly arising in the present case.
SHORT FACTS
3. Parties are referred to as plaintiff and defendants.
Appellant-Nagabhushanammal, since deceased and substituted
by her legal heirs (daughter of deceased Kotilingaraja and
Veerammal), filed a suit for partition, O.S. No. 2062 of 1988
before the City Civil Court, Madras. The suit property situated
at No. 4, Govindarajulyu Naidu Street, Agaram, Madras-82 was


purchased by the plaintiff’s mother Veerammal from her fatherin-law
and his two sons under a sale deed dated 16.09.1919
(Document No.1919, SRO, Sembium) from out of her own
funds. Veerammal had three children, the plaintiff, the first
defendant’s father named Chandrasekaran and one
Neelagandammal. Veerammal, the original owner of the suit
property died in 1922 leaving behind her, the plaintiff and her
brother, late Chandrasekaran, the other daughter
Neelagandammal having pre-deceased her mother Veerammal.
After the death of Veerammal, the property vested equally on
the plaintiff and Chandrasekaran, the defendant’s father. On
the death of Chandrasekaran in 1956, his half share of the suit
property vested on the defendant and his mother Saradhambal,
the widow of Chandrasekaran. According to the plaintiff, in or
about 1961, the plaintiff’s husband realized that Veerammal,
the owner of the property had settled the property in his name
by registered document dated 06.02.1954. He settled the
property in his wife’s (the plaintiff’s) name. This was resented
by defendant’s mother, Saradambal. That necessitated the
filing by the plaintiff of a suit O.S. No. 404 of 1962 on the file of
the VII Assit., City Civil Judge, Madras praying for possession of
2Page 3
suit property on the basis of the settlement made by the said
Veerammal and later by her husband. The learned Judge
refused to believe the genuineness of the settlement made by
Veerammal in favour of her son-in-law, K. Subramanian, the
husband of the plaintiff and hence dismissed the suit on
24.08.1964.
4. Thereafter, the plaintiff filed the present suit in 1988 for
partition.
5. The defendant, in the written statement, mainly
contended that the suit for partition is not maintainable and is
hit by Section 11 of The Code of Civil Procedure, 1908 on the
principle of res judicata. It was his case that after the death of
Kotilingaraja in 1955, the property vested on his son
Chandrasekaran, after his death in 1956, on his son the
defendant and since then the defendant has been in exclusive
possession and enjoyment of the suit property paying the
property tax, etc., with patta in his name.
6. A specific contention was also taken that the plaintiff did
not have any right in the property and that as to the date of the
suit, the defendant had been in exclusive possession of the suit
3Page 4
property for more than thirty years, and hence, the suit was
liable to be dismissed on the ground of adverse possession and
limitation as well.
7. The following issues were framed by the trial court:
“1. Whether the suit property is liable to be
partitioned?
2. Whether the Plaintiff is entitled for half share
in the suit property?
3. Whether the Defendant is liable to render
accounts for the suit property?
4. Whether the suit is affected by res judicata?
5. To what relief the Plaintiff is entitled?”
8. The trial court held that the suit for partition was hit by the
principle of res judicata in view of the dismissal of the earlier
suit, O.S. No. 404 of 1962, referred to hereinabove. The
defence of adverse possession also was upheld and the suit
was thus dismissed by judgment dated 14.08.1990.
9. In the first appeal, A.S. No. 271 of 1990 on the file of the
City Civil Court, Chennai, the judgment of the trial court was
reversed and the suit was decreed. According to the first
4Page 5
appellate court, the decree in O.S. No. 404 of 1962, a suit for
possession and injunction based on a settlement deed
executed by the husband of the plaintiff, was not a bar for the
plaintiff’s suit for partition. It was held that the nature of the
suit was different, issues were different and the whole basis of
the suit was also different. On adverse possession, the first
appellate court held that the plaintiff and defendant were
entitled to succeed to the extent of the property of their
mother, after the death of their father and that plaintiff and
defendant are co-owners in joint possession under law. Unless
one of the co-owners, in the present case, the plaintiff, had
been ousted in accordance with law, the plaintiff could claim
the partition and there is no question of adverse possession.
10. The defendant took up the matter before the High Court in
second appeal in S.A. No. 1792 of 1992 leading to the
impugned judgment dated 17.01.2008. The second appeal was
admitted on the following substantial question of law:
“Whether the Lower Appellate Court was right in
the view it took that the Appellant has not
established prescriptive title to the property?”
5Page 6
11. Later, the following additional substantial question of law
was also formulated:
“Is not the Plaintiff in the present Suit bound by
her admission made in the Plaint filed by her in
O.S. No. 404/1962 regarding dispossession from
the year 1957?”
12. The High Court was of the view that:
“16. The right of the parties was directly in issue
in earlier Suit in O.S. No. 404/1962. As discussed
earlier in O.S. No. 404/1962, Plaintiff claimed right
in the entire Suit Property and sought for
declaration and possession. Saradhambal resisted
the Suit claiming possession and setting up right
in herself. Having regard to the nature of plea
taken by both parties, dismissal of O.S. No.
404/1962 is a strong militating circumstances
against the Plaintiff and maintainability of the Suit
in O.S. No. 2062/1988. The right and title of the
parties was directly and substantially in issue in
O.S. No. 404/1962. As per Sec.11 of CPC, if the
matter was in issue directly and substantially in a
prior litigation and decided against a party then
the decision would be res judicata in a subsequent
proceeding. In any event the filing of subsequent
Suit O.S. No. 2062/1988 is nothing but re-litigation.
After putting the case in one way, then putting the
case in other way is nothing but abuse of process
of Court, which was not kept in view by the trial
Court.”

13. On adverse possession, despite beautifully summing up
the legal position at paragraph-20 in the following lines,:
“20. … To sum up, the basic distinction between
adverse possession as between strangers and
ouster and exclusion of co-owners, the law is well
settled that as between co-owners, there could be
no adverse possession unless there has been a
denial of title and an ouster to the knowledge of
the other.”
the High Court entered a finding that the possession of the suit
property by the defendant continuously since 1956 has become
adverse to that of plaintiff. This finding by the High court is
based on the averment made by the plaintiff in the suit that
the defendant therein had trespassed into the suit property in
1956. In any case, according to the High Court, after dismissal
of O.S. No. 404 of 1962, the possession of the property by the
defendant had become adverse to the plaintiff. Accordingly,
the judgment and decree of the first appellate court was set
aside and that of the trial court, dismissing the suit for
partition, was restored and second appeal was allowed.
Aggrieved, the present appeal.
14. ‘Res judicata’ literally means a “thing adjudicated” or “an
issue that has been definitively settled by judicial decision”.1
1 Black’s Law Dictionary, 8th Edition, p.1337

The principle operates as a bar to try the same issue once over.
It aims to prevent multiplicity of proceedings and accords
finality to an issue, which directly and substantially had arisen
in the former suit between the same parties or their privies and
was decided and has become final, so that the parties are not
vexed twice over; vexatious litigation is put an end to and
valuable time of the court is saved. (See Sulochanna Amma
v. Narayanan Nair2
)
15. In Jaswant Singh v. Custodian of Evacuee Property3
,
this Court has laid down a test for determining whether a
subsequent suit is barred by res judicata:
“…In order that a defence of res judicata may
succeed it is necessary to show that not only
the cause of action was the same but also that
the plaintiff had an opportunity of getting the
relief which he is now seeking in the former
proceedings. The test is whether the claim in
the subsequent suit or proceedings is in fact
founded upon the same cause of action which
was the foundation of the former suit or
proceedings….”
2
(1994) 2 SCC 14
3
(1985) 3 SCC 648
8Page 9
16. The expression ‘cause of action’ came to be interpreted
by this Court in Kunjan Nair Sivaraman Nair v.
Narayanan Nair4
, at paragraph-16. To quote:
“16. The expression “cause of action” has
acquired a judicially settled meaning. In the
restricted sense cause of action means the
circumstances forming the infraction of the right
or the immediate occasion for the action. In the
wider sense, it means the necessary conditions
for the maintenance of the suit, including not
only the infraction of the right, but the infraction
coupled with the right itself. Compendiously the
expression means every fact which would be
necessary for the plaintiff to prove, if traversed,
in order to support his right to the judgment of
the court. Every fact which is necessary to be
proved, as distinguished from every piece of
evidence which is necessary to prove each fact,
comprises in “cause of action”.”
17. In Halsbury’s Laws of England(4th Edition), the
expression has been defined as follows:
“‘Cause of action’ has been defined as meaning
simply a factual situation the existence of which
entitles one person to obtain from the court a
remedy against another person. The phrase has
been held from earliest time to include every
fact which is material to be proved to entitle the
plaintiff to succeed, and every fact which a
defendant would have a right to traverse.
‘Cause of action’ has also been taken to mean
that particular act on the part of the defendant
which gives the plaintiff his cause of complaint,
4
(2004) 3 SCC 277
9Page 10
or the subject-matter of grievance founding the
action, not merely the technical cause of
action.”
18. The suit filed by the plaintiff in 1962, based on the
settlement deed executed by her husband in her favour and
the sufferance of the dismissal of the suit, will not, in any way,
be a bar for making a claim for her share, if any, of the family
property, if otherwise permissible under law. As succinctly
addressed by the first appellate court, the 1962 suit for the
entire property was based on a settlement deed and it was a
suit for possession. Whereas, the 1988 suit for partition was for
plaintiff’s one-half share in the property based on her birth
right. Cause of action is entirely different.
19. Thus, the High Court in our opinion is not right on the
point of res judicata.
20. The other main defense in the suit is ouster and limitation.
Ouster is a weak defense in a suit for partition of family
property and it is strong if the defendant is able to establish
consistent and open assertion of denial of title, long and
uninterrupted possession and exercise of right of exclusive
ownership openly and to the knowledge of the other co-owner
10Page 11
21. This court in Syed Shah Ghulam Ghouse Mohiuddin
and others v. Syed Shah Ahmed Mohiuddin Kamisul
Quadri and Ors5
 held that possession of one co-owner is
presumed to be on behalf of all co-owners unless it is
established that the possession of the co-owner is in denial of
title of co-owners and the possession is in hostility to co-owners
by exclusion of them. It was further held that there has to be
open denial of title to the parties who are entitled to it by
excluding and ousting them.
22. A three judge bench of this court in P.Lakshmi Reddy v.
R.Lakshmi Reddy6
, while examining the necessary conditions
for applicability of doctrine of ouster to the shares of coowners,
held as follows:
“4. Now, the ordinary classical requirement of
adverse possession is that it should be nec vi
nec clam nec precario. (See Secretary of State
for India v. Debendra Lal Khan [ (1933) LR 61 IA
78, 82] ). The possession required must be
adequate in continuity, in publicity and in extent
to show that it is possession adverse to the
competitor. (See Radhamoni Debi v. Collector of
Khulna [ (1900) LR 27 IA 136, 140] ). But it is
well-settled that in order to establish adverse
possession of one co-heir as against another it is
not enough to show that one out of them is in
sole possession and enjoyment of the profits of
5
(1971) 1 SCC 597
6 AIR 1957 SC 1789
11Page 12
the properties. Ouster of the non-possessing coheir
by the co-heir in possession who claims his
possession to be adverse, should be made out.
The possession of one co-heir is considered, in
law, as possession of all the co-heirs. When one
co-heir is found to be in possession of the
properties it is presumed to be on the basis of
joint title. The co-heir in possession cannot
render his possession adverse to the other coheir
not in possession merely by any secret
hostile animus on his own part in derogation of
the other co-heir's title.
(See Cores v. Appuhamy [(1912) AC 230)]. It is
a settled rule of law that as between co-heirs
there must be evidence of open assertion of
hostile title, coupled with exclusive possession
and enjoyment by one of them to the knowledge
of the other so as to constitute ouster. This does
not necessarily mean that there must be an
express demand by one and denial by the
other.”
23. This Court in Vidya Devi v. Prem Prakash7 held that:
“28. ‘Ouster’ does not mean actual driving out of
the co-sharer from the property. It will, however,
not be complete unless it is coupled with all other
ingredients required to constitute adverse
possession. Broadly speaking, three elements are
necessary for establishing the plea of ouster in the
case of co-owner. They are (i) declaration of
hostile animus, (ii) long and uninterrupted
possession of the person pleading ouster, and (iii)
exercise of right of exclusive ownership openly
and to the knowledge of other co-owner. Thus, a
co-owner, can under law, claim title by adverse
possession against another co-owner who can, of
course, file appropriate suit including suit for joint
possession within time rescribed by law.”
7
(1995) 4 SCC 496
12Page 13
24. In Civil Suit O.S. No. 404 of 1962, filed by the plaintiff in
the court of VII Assistant City Civil Judge, it was the stand of the
plaintiff that she had been dispossessed from the property in
the year 1957. Defendant had taken a plea at paragraph-14 of
the written statement that “after the death of Kotilingaraja in
1955, the property vested on his son Chandrasekaralingam and
after his death in 1956 on his son this defendant, since then
this defendant has been in exclusive possession and enjoyment
of the suit property paying the property tax etc., with the patta
in his name”. At Paragraphs-28 and 29 of the written
statement also, the defendant had taken a specific plea on
hostile animus and exclusive possession. The averments read
as follows:
“28. This defendant submits that for the past 30
years and more he has been in exclusive
possession of the suit property and Plaintiff’s claim
is also barred by adverse possession and
limitation.
29. This defendant states that Patta over the suit
property has been ordered to be registered in his
name and the claim of this plaintiff was rejected
by the Settlement Enquiry Tahsildar, by his order
dated 14.11.1959, after due enquiry and notice to
parties.”
13Page 14
25. The above being the emerging true factual and correct
legal position, with a view to putting an end to five decades old
disputes between a sister and brother, to avoid any further
litigation and to get the families to reconcile and restore peace,
we put a suggestion for a reasonable settlement. Thanks to the
sincere cooperation extended by Sri Viswanathan, learned
Senior Counsel for the appellant, Sri V. K. Shukla, learned
Counsel for the respondent and the cooperation extended by
the parties themselves, it is heartening to note that a solution
has evolved. Accordingly, it is ordered that the appellants shall
be entitled to 35% and the respondent 65%. Let the suit
property be accordingly partitioned. If it is found that it is not
possible to do so by metes and bounds, let the property be sold
and proceeds shared accordingly. We direct the Principal City
Civil Judge, Madras to take the required steps to work out this
order and finalise everything expeditiously, and in any case,
within three months from the date of production of a copy of
this judgment. The appeals are disposed of accordingly.
14Page 15
26. There shall be no order as to costs.

……………..……………………J.
 (KURIAN JOSEPH)
……………..……………………J.
 (ROHINTON FALI NARIMAN)
New Delhi;
February 26, 2016.
15
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