RAMADHAR SHRIVAS versus BHAGWANDAS

Citation: [2005] SUPP. 4 S.C.R. 808 · Decided: 27-10-2005 · Supreme Court of India · Bench: R.C. LAHOTI · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
RAMA DHAR SHRIV AS 
v. 
BHAGWANDAS 
OCTOBER 27, 2005 
B (R.C. LAHOTI, CJ., C:K. THAKKER AND P.K. BALASUBRAMANYAN, JJ.] 
c 
Code of Civil Procedure, 1908: 
Section 11 Explanation IV: 
Constructive Res Judicata-Matter constructively in issue-A matter 
'might and ought' to have been made a ground of defence or attack and 
parties had an opportunity of controverting the same-Held, to be taken as 
if the matter has been actually controverted and decided-Object is to take 
D all the grounds of attack or defence in one and the same suit. 
Appellant, after purchase of a house from his vendor, filed suit for 
dispossessing inter a/ia the respondent who had forcibly taken possession of 
a portion of the house, claiming the house to be their ancestral property and 
as such the vendor had no right to sell the same. Trial court held that the 
E vendor was absolute and full owner of the property and he had a right to sell 
it to the appellant and, accordingly, the sale was held to be legal, valid and in 
accordance with law. As· regards the respondent rejecting his contention, the 
court found that he was occupying the property as tenant under the vendor 
and after the sale, under the appellant but was not paying rent to him. 
Respondent was not held to be in unauthorized possession or a 'trespasser' 
F but was tenant, and, therefore, the suit was dismissed against him. Subsequent 
suit for eviction and arrears of rent was decreed holding that there was 
relationship of tenant and landlord. The Appellate court, however allowed the 
appeal and dismissed the suit Second appeal preferred by the appellant was 
dismissed by the High Court. Hence, this appeal. 
G 
Appellant contended that ownership of the appellant over the suit 
property was conclusively established in the earlier suit and it operated as 
res judicata and the respondent was bound by it. It was further contended that 
if it was the case of the respondent that the was in lawful possession in any 
capacity other than tenant, he ought to have raised such defence in the earlier 
H 
808 
-
RAMADHAR SHRIV AS v. BHAGWANDAS 
809 
proceeding. 
Respondent, on the other hand, contended that the so called finding 
recorded in the earlier proceeding was collateral and incidental in nature 
and would not operate as res judicata in the subsequent suit. 
Allowing the appeal, the court 
A 
B 
HELD I.I. It is not open to the respondent to deny the title of the appellant 
since in appropriate proceeding, a finding has been recorded as to ownership 
of the property and a decree has been passed by a competent civil court holding 
the appellant to be the owner which has attained finality and would operate as 
res judicata. 1816-A; 817-A] 
C 
1.2. Rule of constructive res judicata applies to the present case. A 
matter is actually in issue when it is in issue directly and substantially and 
a competent court decides it on merits. A matter is constructively in issue 
when it 'might and ought' to have been made a ground of defence or attack in D 
the former suit. Where the parties have had an opportunity of controverting 
a matter that should be taken to be the same thing as if the matter had been 
actually controverted and decided. (818-B, C, EJ 
Pawan Kumar Gupta v. Rochiram Nagdeo, (1999) 4 SCC 243; f!.K 
Vijayan v. Kamalakshi Amma and Ors., [1994) 4 SCC 53; K. Ethirajan (dead) E 
by Lrs. v. Lakshmi and Ors., [2003] 10 SCC 578; Marwari Kumhar and Ors. 
v. Bhagwapuri Guru Ganeshpuri and Anr., [2000) 6 SCC 735; Mridhavkrishna 
and Anr. v. Chandra Bhaga and Ors., [1997) 2 SCC 203; Kanda Lakshmana 
Bapuji v. Government of A.P. and Ors., (2002] 3 SCC 258 and Most. Rev. P.MA. 
Metropolitan and Ors. v. Moram Mar Marthonia and Anr., [1995) Supp 4 SCC 
~~~~ 
F 
1.3. The object of the 'Rule of constructive res judicata' is to compel 
the parties to take all the grounds of attack or defence in one and the same 
suit. [818-E] 
Vide Haro v. JHAN Ara, [1973] 2 SCC 189: AIR (1973) SC 1406; G 
Jaswant Singh v. Custodian of Evacuee Property, [1985) 3 SCC 648: AIR 
(1985) SC 1096: [1985] Supp I SCR 331; Forward Construction Co. v. 
Prabhat Manda!, (1986) I SCC 100: AIR (1986) SC 391: (1985) Supp 3 SCR 
.. 
766; Direct Recruit Class fl Engineering Officers Association v. State of 
Maharashtra, (1990) 2 sec 715:AIR (1990) SC 1607 and Vijayan v. H 
810 
SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R. 
A Kama/akshi, [1994] 4 SCC 53: AIR (1994) SC 2145, relied on. 
B 
c 
CIVIL APPELLATE JURISDICTION : Civil Appeal 

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