KOSHAL PAL & ORS. versus MOHAN LAL & ORS

Citation: [1976] 2 S.C.R. 827 · Decided: 26-11-1975 · Supreme Court of India · Bench: KUTTYIL KURIEN MATHEW · Disposal: Case Partly allowed

Judgment (excerpt)

1 
KOSHAL PAL & ORS. 
v. 
MOHAN LAL & ORS 
November 26, 1975 
82 7 
[K. K. MATHEW, P. K. GOSWAMI AND N. L. UNTWALIA, JJ.) 
Code of Civil Procedure (Act 5 of 1908). Sec. 11-Res judicata--Suit based 
on relationship of /,and/ord and tenant dismissed-Subseque111 suit based on title 
when barred by res judicata. 
A 
B 
A suit for rent and possession of a house by eviction of the defendants was 
dismissed by the trial Court. The suit was filed against 6 defendants but the 
claim against the 6th defendant \tas not pursued. The 4th defendant was the 
mother of defendants I to 3 and the 5th defendant was her brother. Defendants 
C 
2 and 3 were minors. The suit was on the basis of a rent note purported to 
!;>ave been executed bv the 5th defendant on behalf of the defendants 1 to 4 
as tenants; and alternatively, the plaintiff relied on the status of defendant~ 1 
to 4 as tenants deriv-ed from the position of the father of defendants 1 to 3 as 
a tenant under plaintiff's father. 
The trial Court held that defendants 1 to 4 
were in adverse possession of the house. The ·plaintiff filed an appeal, but 
against defendants 2 and 3 it was filed out of time. The first appellate Court 
observed that the trial Court "profed into unnecessary matters". 
It passed a 
decree against the 5th defendant "on his own account" to vacate the house, 
D 
but, as admittedly, he was never in occupation of the house, that decree was 
infructuous. The appellate Court also held that the plaintiff's suit against the 
defendants 1 to 4 and 6 must fail and that the appeal against defendants 2 and 
3 should fail on the ground of limitation as well. 
The plaintiff then filed anoth-er 
suit against the same defendants in the same trial Court for a declaration of 
his tiele to the house a_nd for possession. This suit was decreed by the trial 
Cgurt and· the first appellate Court. Second· appeals to the High Court, in both 
matters, were heard together and disposed of by a common judgment and both 
E 
appeals were dismissed. The High Court observed in its judgment that as re-
gards the question of adverse possession of defendants I to 4 in the first suit, 
"the lower appellate Court held that it did not arise and, therefore, no finding 
was given on that point". The question whether the second suit was barred 
by res judz'cata because of the decision in. the first suit was not raised at the 
hearing before the High Court. The plaintiff q_id not file a further appeal to 
this Court in the first suit, but defendants 1 to 4 filed an appeal to this Court in 
tb.e second suit and raised_ the plea of res judlcata. The plaintiff contended in 
reply that the 2nd suit was not barred by res judicata because, (1) there 
F 
was no final decision regarding the adverse possession of defendants 1 to 4 in 
the first suit; and (2) there was no finding in the earlier suit on plaintiff's 
title, as the question was not raised in the first suit, and so the scope and sub-
ject matter of the two suits was not the same. 
HELD : (Per Majority-K. K. Mathew and P. K. Gosirami, JJ.) : 
' 
The appeal of defendants 2 and 3 must be allowed, because, the second suit 
was barred by res judicata as against them, but not against defendants I and 
G 
4. [8J4A-B] 
(I )(a) Ordinarily. when there is an appeal against a judgment, the appel· 
late order alone will be operative. 
But, in the present case, on the dismissal of 
the plaintiff's appeaL by the first appellate Court in the first suit, as time barred, 
against defendants ?. and 3, the trial Court's judgment became final between 
them and the plaintiff. Tbe High Court, in second appeal, did not do anything 
to the contrary with regard to the appeal against these two defendants. 
The 
plaintiff .took a specific ground in the High Court that "the lower appellate 
H 
Court erred in law in dismissing the appeal against defendents 2 and 3 on the 
ground of limitation". but the High Court did not record any decision on this 
point, and did not disturb the finality of the decision regarding the adverse 
possession of defendants -2 and 3. 
Its observation that no finding was given 
A 
B 
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D 
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F 
G 
H 
828 
SUPREME COURT REPORTS 
(1976] 2 S.C.R. 
by the first appellate Court ~n th!l question of. adverse po~,ession shows that 
the findmg of advers7 possession g.iven by the tnal Court was displaced by the 
fi:st appellate Court rn the first smt, but only .in relation to 1lze adverse posses" 
s1,on oj defendallls 1 -and 4 and not of.. defendams 2 

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