AANAIMUTHU THEVAR (DEAD) BY LRS. versus ALAGAMMAL AND ORS.

Citation: [2005] SUPP. 1 S.C.R. 549 · Decided: 12-07-2005 · Supreme Court of India · Bench: D.M. DHARMADHIKARI · Disposal: Dismissed

Judgment (excerpt)

AANAIMUTHU THEV AR (DEAD) BY LRS. 
A 
v. 
ALAGAMMAL AND ORS. 
JULY 12, 2005 
[D.M. DHARMADHIKARI AND TARUN CHATTERJEE, JJ.] 
B 
Code of Civil Procedure, 1908-Section I I, Explanation IV-Res 
judicata-Husband of respondent no. I, in a panchayat settlement, agreed to 
relinquish his right of ownership in suit property in favour of respondent 
no. I-But did not execute any registered document to that effect-Instead C 
executed a mortgage, and a/ongwith the mortgagee filed a joint suit for 
permanent injunction against Respondent no. I-Respondent I in defence 
claimed possession in terms of the panchayat settlement-The suit was 
dismissed-The judgment attainedfinality-Appellant subsequen(ly purchased 
suit property ji·om husband of respondent I and on that basis, instituted suit D 
for declaration of title and possession against respondent no. I-Bar of res 
judicata-Applicability of-Held: The earlier suit substantially involved 
decision or. ownership by husband of respondent I-Though he himself did 
not have a registered title at that time, yet as against respondent no. I had 
a better title-He ought to have raised such plea but did not-Appellant 
being purchaser ji-om husband of respondent I, was litigating under the same E 
title which the latter had-Hence was estopped ji-om challenging title of 
responde1it I in the subsequent suit filed by him, which was therefore barred 
by constructive res judicata. 
A settlement was reached in the village panchayat, whereby husband of 
respondent no.I agreed to relinquish his right of ownership in the suit house F 
in favour of respondent no.I. But he did ~ot execute any formal written and 
registered document to that effect. Instead, he subsequently executed a 
registered deed of mortgage, and alongwith the mortgagee jointly filed a civil 
suit for permanent injunction against Respondent no.I. The suit was 
dismissed. That judgment was not appealed against, hence, it attained finality. G 
On the date of the suit, there was no formal document of conveyance of 
the suit house executed in favour of husband of respondent 1. There existed 
on that date merely a right he had inherited in the house allotted to his late 
mother. He became owner of the suit house only subsequently when a formal 
549 
H 
550 
SUPREME COURT REPORTS [2005] SUPP. 1 S.C.R. 
A conveyance deed was executed in his favour by the co-operative housing society. 
Thereafter, he sold the suit house by a registered sale deed in favour of the 
appellant. On basis of the purchase, appellant instituted a civil suit seeking 
declaration of his title and possession from respondent no.1 and her children. 
The question which arose for consideration in the present appeals is as 
B to whether the subsequent suit filed by the appellant is barred by constructive 
res judicata. 
Dismissing the appeals, the Court 
HELD: 1. Section 11 CPC contains the doctrine of res judicata. The 
C former suit was jointly filed by husband of respondent 1 as owner/mortgagor 
and the mortgagee. The suit in which decree of permanent injunction was 
sought was clearly founded on the claim of husband of respondent 1 as the 
owner of the suit house to execute a mortgage. The issue of title or ownership 
ofthe suit house was thus directly or substantially involved in the former 
D suit. The subsequent suit is by the appellant who is purchaser from husband 
of respondent 1. The appellant is, therefore, litigating under the same title 
which husband of respondent 1 had in the suit house. [558-F). 
E 
/shar Singh v. Sarwan Singh, AIR (1965) SC 948 and Jumma Masjidv. 
Kodimaniandra Deviah, AIR (1962) SC 847, referred to. 
2. In the former suit, respondent no.1 clearly set up her own right of 
ownership to the suit house on the basis of settlement and relinquishment of 
the suit house in her favour by the husband in the village panchayat. Claim of 
such ownership and title might have been found ineffectual in law, as pursuant 
to such oral relinquishmentin village panchayat, the husband did not execute 
F any formal written and registered document. It was open to her husband and 
his mortgagee to raise a counter plea that the alleged oral relinquishment in 
village panchayat was ineffectual in law and conferred no title on her. 
[560-B-C) 
3. On the date of former suit, true it is that there was no formal document 
G of conveyance of the suit house executed by the society in favour of husband 
of respondent 1. There existed on that date merely a right he had 

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