MD. NOOMAN & ORS. versus MD. JABED ALAM & ORS.

Citation: [2010] 11 S.C.R. 729 · Decided: 22-09-2010 · Supreme Court of India · Bench: AFTAB ALAM · Disposal: Dismissed

Judgment (excerpt)

[2010] 11 S.C.R. 729 
MD. NOOMAN & ORS. 
v. 
MD. JABED ALAM & ORS. 
(Civil Appeal No. 2579 of 2004) 
SEPTEMBER 22, 2010 
[AFTAB ALAM AND R.M. LODHA, JJ.] 
Suit - Eviction suit- Issue regarding title between parties 
- Recording of finding in favour of plaintiff~ Subsequent suit 
A 
8 
for declaration of title and recovery of possession between the 
C 
same parties - Effect of earlier suit on the subsequent suit -
Held: 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 - Question of title was directly 
D 
and substantially in issue between the parties in the earlier 
suit - Res judicata. 
The plaintiff, mother of· the respondents, filed a suit 
for eviction against the defendant, father of the 
appellants. The issues were framed regarding the 
plaintiff's claim to the. title over the suit property and the 
relationship of landlord and tenant between the parties. 
The trial court upheld the plaintiff's claim to the title but 
did not grant decree of eviction since the relationship of 
landlord and tenant was not established between the 
parties. The appellate court affirmed the order of the trial 
court. Thereafter, the plaintiff filed another suit against the 
defendant seeking declaration of title over the property 
and recovery of its possession from the defendant. The 
trial court decreed the suit. The defendant filed an appeal 
G 
and the same was allowed. Thereafter, the plaintiff died 
and her legal representatives-respondent filed the second 
appeal. The High Court set aside the judgment and the 
E 
F 
729 
H 
730 
SUPREME COURT REPORTS 
[2010] 11 S.C.R. 
A decree passed by the first appellate court and restored 
the judgment and the decree of the trial court. Therefore, 
the appellants filed the instant appeal. 
B 
Dismissing the appeal, the Court 
HELD: 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 
C 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. [Para 
17] [7 40-D-F] 
D 
Pardip Singh vs. Ram Sundar Singh AIR (36) 1949 
Patna 510 - approved. 
Shamim Akhtar v. Iqbal Ahmad and Anr. (2000) 8 SCC 
123;Sajjadanashin Sayed Md.B.E.Edr.by L.Rs.(D) vs, Musa 
E DadabhaiUmmer and Ors. (2000) 3 SCC 350 - referred to. 
Case Law Reference: 
(2000) s sec 123 
F 
(2000)3 sec 350 
Referred to. 
Referred to. 
Para 14 
Para 15 
Para 15 
G 
H 
AIR (36) 1949 Patna 510 
approved. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 
2579 of 2004. 
From the Judgment & Order dated 24.05.2002 of the Hig~,. 
Court of Judicature at Patna in Appeal from appellate· decree ' .. 
No. 236 of 1987. 
MD. NOOMAN & ORS. v. MD. JABED ALAM & ORS. 731 
H.L. Agarwal, Gaurav Agrawal, Dr. Kailash Chand for the 
A 
Appellates. 
Seema Kashyap, S.K. Sinha for the Respondents. 
The Judgment of the Court was delivered by 
B 
AFTAB ALAM, J. 1. A finding on the question of title 
recorded in a suit for eviction would how far be binding in a 
subsequent suit for declaration of title and recovery of 
possession between the same parties? This is the question 
that arises for consideration in this appeal. The answer to the c 
question would depend on, in what manner the question of title 
was raised by the parties and how it was dealt with by the court 
in the eviction proceedings. Ordinarily, it is true, in a suit for 
eviction even if the court goes into the question of title, it 
examines the issue in an ancillary manner and in such cases 
(which constitute a very large majority) any observation or 
finding on the question of title would certainly not be binding in 
any subsequent suit on the dispute of title. But there may be 
exceptions to the general rule and as we shall find presently, 
the case in hand seems to fall in that exceptional category of 
very limited number of cases. 
2. Amina Khatoon, the mother of respondent nos.1-4, (who 
were substituted in her place and brought on record after her 
death) instituted a suit for eviction (Title Suit No.36 of 1973) in 
D 
E 
the Court of Secon

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