When question of title decided in rent suit will be res judicata?

But we may state here that Mr. Agrawal with great fairness brought to our notice a decision of the Patna High Court1 in Pardip Singh v. Ram Sundar Singh MANU/BH/0056/1949 : AIR 1949 Pat 510, though it is clearly against him. It is an old decision in which the division bench of the High Court placed reliance on two earlier decisions of the Privy Council. In Pardip Singh Meredith J., speaking for the division bench of the court observed as follows:

The decision in a rent suit is not res judicata on the question of title unless the question of title had to be decided, was expressly raised, and was expressly decided between the parties and in each case it is necessary to examine carefully the decision in the rent suit before any opinion can be formed as to whether it operates as res judicata on the question of title or not. Ordinarily the decision would be res judicata only with regard to the existence of the relationship of landlord and tenant. The difference in the two classes of cases is very well illustrated in two Privy Council decisions, namely, Run Bahadoor Singh v. Mt. Lucho Koer 12 I.A. 23: 11 Cal. 301 P.C., where it was held that the decision was not res judicata as the question of title had been gone into only incidentally and collaterally, and Radhamadhub Holdar v. Manohar Mookerji 15 I.A. 97: 15 Cal. 756 P.C., where the question of title was directly decided in a rent suit, and the decision was held to be res judicata.

16. We respectfully concur with the view expressed in the decision in Pardip Singh.

17. We have carefully examined the pleadings of the parties in the two suits and the evidences led by them in support of their respective claims regarding title in the two suits. And, we are satisfied that the issue of title was expressly raised by the parties in the earlier eviction suit and it was expressly decided by the eviction court. The question of title was directly and substantially in issue between the parties in the earlier suit for eviction. Hence, the High Court was right in holding that the finding recorded in favour of the plaintiff in the earlier suit for eviction would operate as res judicata in the subsequent suit for declaration of title and recovery of possession between the parties.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2579 of 2004

Decided On: 22.09.2010

 Md. Nooman Vs. Md. Jabed Alam and Ors.

Hon'ble Judges/Coram:

Aftab Alam and R.M. Lodha, JJ.

Citation:(2010) 9 SCC 560

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Whether incidental finding given to issue relating to ownership will be res judicata in subsequent suit?

 In such situation, as the Appellate Court has committed an error in framing the issue relating to the ownership of the Respondents therein (Petitioners herein) over the suit plot, this Court has corrected that error and set-aside that finding mainly and mostly on the ground that such issue was not raised for consideration as the suit was simpliciter for injunction. Thus, the issue relating to the ownership of the present Petitioners over the strip of land was not at all "directly and substantially" for consideration in the earlier proceedings. In view thereof, the incidental finding given to the issue relating to the ownership of the Petitioners over the strip of land, cannot operate as res-judicata; especially when the parties to this suit are also not the same parties to the previous suit.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 8909 of 2017

Decided On: 31.01.2018

 Vishal Bhagwan Chandanshive Vs. Sangli Miraj and Ors.

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation: 2018 (4) MHLJ 178

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