LexGANGABAI W/O RAMBILAS GILDA versus CHHABUBAI W/O PUKHARAJJI GANDHI
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A 1176 .8 c D E F GANGABAI W/O RAMBILAS GILDA v. CHHABUBAI W/O PUKHARAJJI GANDHI November 6, 1981 [D.A. DESAI AND R.S. PATHAK, JJ.J Res judicata, bar of-Question of tille in Small Cause Suit can be regarded as incidental only to the substantial issue in the suit and cannot operate as res judicata-Section 11 of the Code of Civil Procedure. Evidence Act-_ Admissibility of oral evidence-Bar imposed by sub-section ( 1) of section 92 of the Act-Scope of. Being in need of money, respondent entered into an agreement with the appellant for a loan of Rs. 2,000 and it was decided that simultaneously she should execute a nominal document of sale and rent note, of her house situated near Sarafa Bazar in Amravati. These documents were executed on January 7, 1953. The respondent continued in the possession of the house property through .. out and carried on repairs from time to time. Since the appellant was attempt- ing to enforce the document as a sale deed by filing suits in tbe Court . of Small Causes for recovery of rent and the said suits had resulted in a decree, the res- pondent filed a suit for declaration that she was and continued to be owner of the house property. The documents executed on January 7, 1953,~i t was said, were never intended to be acted upon. In defence, the appellant. maintained that the sale deed represented a genuine transaction, and ownership of the house property bad passed to her. It was further pleaded that the decrees passed by the Court of SmaH Causes operated as res judicata barring the respondent from pleading that the sale deed w.as merely a nominal transaction. Reliance was also placed on section 92 of the Indian Evidence Act. Dismissing the appeal by special leave, the Court HELD : 1:1. When a finding as to title to immovable property is rendered by a Court of Small Causes res judicata cannot be pleaded as a bar in a subsequent regular civil suit for the determination or enforcement of any right or interest in G immovable property. In order to operate as res judicata the finding must be one disposing of a matter directly and substantially in issue in the former suit and the issue should have been heacd and finally decidc:d by the court trying such suit. A matter which is collaterally or incidentally in issue for the purpose of deciding the matter which is directly in issue in the case cannot be inade the basis of a pica of res judicata. A question of title in a Small Cause suit H can be regarded as incidental ionly to the substantial issue in the suit and cannot operate as res judicata in a subsequent suit in which the question of title ii directly raised. [1181 O-IJ82A-CJ - + - ClANGAbAI v. cllllABUBAI I :2. Explanation Vlll to section II of the Code of Civil Procedure operates only where an issue has been heard and finally decided in the earlier suit. [1182 D-EJ 1 :3. In the instant case, the finding rendered by the Court of Small Causes in the two suits filed by the appellant that the document executed by the respon- dent is a sale deed cannot operate as res judicata. [1182 E] Poholi Mullick v. Fukeer Chunder Patnaik, (1874) 22 Suth W.R. 349; Chtt Ram and Others v. Ganga, 1086 Allahabad Weekly Notes; Anwar Ali v. Nur-Ul- Haq and Another,(1901) 4 Allahabad Law Journal 517; Khandu Va/ad Keru v. Tatia valad Vithoba, (1871) 8 Bombay H.C.R.A.C. 23(24) (DB); Mohd. Yusuf and another v. Abu/ Wahid, A.LR. 1948 All. 296 and S.A.A. Annamalai Che1tiar v. Molaiyan and others, A.LR. 1970 Mad. 396, approved. Muhammad Abdul Ghafur Khan v. Gokul Prasad and others, A.I.R. 1914 All. 527; Gulabchand Chhotalal Parikh v. State of Bombay, [1965) 2 S.C.R. 574; Madan Kishor and Another v. Mahabir Prasad and others1 A.l.R. 1929 All. 816; Ram Dayal Sonar v. Sukh Mango/ Ka/war, A.l.R. 1937 All. 676; Ganga Prasad v. Nandu Ram, A.LR. 1916 Patna 75; Gantsh Das v. Feroze Din, A.l.R. 1934 Lahore 355, Puttangowda Mallangowda Patil v. Nilkanth Kalo Deshpande, XV Bombay Law Reporter 773; Asgarali R.Jshanalli and another v. Kayumalli Ibrahimji, A.l.R. 1956 Bombay 236: Lala Jageshwar Prasad v. Shyam Behari Lal, A.I.R. 1967 All. 125; Shyam Behari Lal v. Lala Jogeshwar Prasad, [19701 3 S.C.C. 591; Manzural Haq and ano1her v. Hakim Mohsin Ali, A.I.R. 1970 All. 604; Pateshwari Parshad Singh v. A. S. Gilani, A.I.R. 1959 Punjab 420, referred to and dissented from. 2. The bar imposed by sub-section ( 1) of section 92 applies only when a party seeks to rely upon th
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