RAMESH CHANDRA versus SHIV CHARAN DASS AND ORS.

Citation: [1990] SUPP. 2 S.C.R. 97 · Decided: 21-09-1990 · Supreme Court of India · Bench: M.H. KANIA, R.M. SAHAI · Disposal: Dismissed

Judgment (excerpt)

I 
J • 
RAMESH CHANDRA 
v. 
SHIV CHARAN DASS AND ORS. 
SEPTEMBER 21, 1990 
[M.H. KANIA AND R.M. SAHA!, JJ.] 
Code of Civil Procedure. 1908: Section //-Res Judicata-Finding 
recorded in appeal in one suit-Whether operates as Res judicata in 
fatter suit. 
The Appellant's father purchased the house of respondent Nos. 1 
A 
B 
c 
and 2 with condition of repurchase by the sellers after five years. He 
permitted the respondents to remain in possession but got a rent note 
executed by. Respondent No.3, the first cousin of Respondent No.l. 
Aller the expiry of 5 years when the house was not repurchased by the 
respondents, the appellant's father (plaintitl) instituted a suit for 
arrears of rent and ejectment against Respondent Nos. 1, 2 and 3 
D 
(Defendant Nos. 2, 3 and 1) claiming that defendant No. 1 was in 
arrears of rent and defendant Nos. 2 and 3 were his sob-tenants. The 
Trial Court decreed the suit for arrears of rent against-defendant No. 1 
but dismissed the snit for ejectment against defendant Nos. 2 and 3 
holding that they were not sub-tenants. Defendant No. 1 filed an 
appeal against the decree for arrears of rent: The Appellate Court 
dismissed the appeal with an observation that though the rent note was 
executed by Defendant No. 1, the possession of Detendant Nos. 2 and 3 
was on behalf of Defendant No. 1 since they were ttosely related. Rely-
ing on these observations the plaintiff filed a second suit against the 
defendants with a change that defendant Nos. 2 and 3 were licensees of 
defendant No.1. The Trial Court decreed the suit for arrears of rent 
against defendant No. 1 and for ejectment against defendant Nos. 2 and 
3. Both defendant No. 1 separately and defendant Nos. 2 and 3 jointly 
filed two appeals which were dismissed. 
E 
F 
Separate appeals were filed in the High Court which ·dismissed the 
appeal of defendant No. 1 and allowed the appeal of defendant Nos. 2 
G 
and 3 holding that the findings recorded in appeal arising out of earlier 
suit that they were licensees did not operate as res judicata. Accordingly 
the High Court dismissed the suit for ejectment against defendant Nos. 
2 and 3. Hence this appeal. 
Dismissing the appeal, this Court, 
H 
97 
98 
SUPREME COURT REPORTS 
[1990] Supp. 2 S.C.R. 
-... 
A 
HELD: One of lhe tests to ascertain if a fmding operates as res 
judicata is if the party aggrieved could challenge it. Since the dismissal 
of appeal or the appellate decree was not against defendants Nos. 2 and 
3 they could not challenge it by way of appeal. Even assuming that 
defendant No. 1 rould challenge the fmding that liability of rent was of 
defendant Nos. 2 and 3 as they were in possession he did not file any 
B 
written statement in the Trial Court raising any dispute between him. 
self and defendants Nos. 2 and 3. There was thus no-occasion for the 
appellate court to make the observation when there was neither plead-
ing nor evidence. Therefore, from either point of •iew the fmding could 
not operate against defendants Nos. 2 and 3 as res judicata. [lOOE·GI 
c 
Keshardeo Chamria v. Radha Kissen Chamria, [1953 I S.C.R. 
154; held in applicable. 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2840 
of'l982. 
D 
From the Judgment and Order dated 5.12.1979 of the Allahabad 
High Court in Second Appeal No. 82 of 1972: 
R.K. Garg and H.K .. Puri for the Appellant. 
Satish Chandra, Pramod Swarup and A.K. Srivastava for the 
E 
Respondents. 
The Judgment of the Court was delivered by 
R.M. SAHAI, J. In this appeal by grant of special leave, direc-
ted against judgment of the Allahabad High Court in second sppeal 
F 
arising out of a suit for arrears of rent and ejectment, the question is if 
the High Court committed any error of law in allowing the second 
appeal on the ground that the two courts beiow had erroneously held 
that finding recorded in an appeal, filed by one of the defendants who 
was sued as tenant in an earlier suit, could not operate as res judicata. 
between plaintiff and respondents who were defendants nos. 2 and 3 in 
G 
that suit. 
Unfortunately for appellant-equity may or may not be in his 
favour as his father too acted shrewdly while purchasing house of 
daughter-in-law's father but law is certainly not in his favour. How 
dispute arose between parties, who are closely related, is quite 
H 
interesting. Shiv Charan Das and Har Charan Das (respondents nos. 1 
.. 
... 
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\ 
RAMESH '· S.C. DASS [SAHA!, J.) 
99 
and 3 in this appeal) are first cousins. Ra

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