SMT. V. RAJESHWARI versus T.C. SARAVANABAVA

Citation: [2003] SUPP. 6 S.C.R. 927 · Decided: 16-12-2003 · Supreme Court of India · Bench: R.C. LAHOTI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

SMT. V. RAJESHW ARI 
A 
v. 
T.C. SARA V ANABA VA 
DECEMBER 16, 2003 
[R.C. LAHOTI AND ASHOK BHAN, JJ.] 
B 
Res judicata-Plea not taken by raising necessary pleadings at the 
stage of trial-Plea taken for first time in Second Appeal before High 
Court-High Court upholding plea and dismissing suit-Held, foundation 
for plea of res judicata must be laid in pleadings and should be C 
substantiated by producing copies of pleadings, issues and/or judgement 
in previous case-Plea not properly raised at the stage of trial should not 
be permitted to be raised for first time at the stage of appeal-in the facts 
held, there is no res judicata. 
Adverse possession-Plea taken by defendant in suit for declaration D 
of title and possession-Person taking plea already filing suit for partition 
in respect of suit property claiming share as co-owner which was 
dismissed-Person failing to plead and prove how and when he started 
prescribing hostile title in respect of suit property-Held, plea of adverse 
possession is without merit. 
Appellant-plaintiff filed suit for declaration of title ~nd recovery 
E 
of possession in respect of suit property measuring 1817 sq. ft. against 
the respondent-defendant after purchasing suit property. Defendant 
flied written statement denying title of plaintiff and took the plea of F 
adverse possession. An earlier suit for partition against one of pred-
ecessors-in-title of plaintiff filed by defendant claiming half share in 
suit property as co-owner-in possession was dismissed. Trial Court and 
First Appellate Court decreed suit of plaintiff. However, in the First 
Appellate Court, plaintiff to support the findings of the Trial Court G 
produced judgement and decree regarding title passed in favour of one 
of his predecessors-in-title directing defendant to deliver possession 
over upper portion of the building (240 sq. ft.) in the suit property to 
the plaintiff therein. High Court allowed Second Appeal preferred by 
defendant and dismissed suit of plaintiff holding that it was barred by 
principle of res judicata s.ince isst1~ as to title and possession over suit H 
927 
928 
SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R. 
A property was already decided in the suit filed by predecessor-in title 
of the plaintiff. Review filed by plaintiff was also dismissed. Hence, the 
present appeals by the plaintiff. 
B 
c 
Allowing the appeals, the Court 
HELD : 1. The rule of res judicata does not strike at the root of 
the jurisdiction of the court trying the subsequent suit. It is a rule of 
estoppel by judgement based on the public policy that there should be 
a finality to litigation and no one should be vexed twice for the same 
cause. [933-B-C] 
2. The foundation for the plea of res judicata must be laid in the 
pleadings and then an issue must be framed and tried. Not only the 
plea has to be taken, it has to be substantiated by producing the copies 
of the pleadings, issues and judgement in the previous case. Such pleas 
D cannot be left to be determined by mere speculation or inferring by 
a process of deduction what were the facts stated in the previous 
pleadings. A plea not properly raised in the pleadings or in issues at 
the stage of the trial, would not be permitted to be raised for the first 
time at the stage of appeal. (933-D-E, 934-D-E] 
E 
Gurbux Singh v. Bhooralal, (1964] 7 SCR 831; The State of Punjab 
v. Bua Das Kaushal, (1970) 3 SCC 636; Syed Mohd. Salie Labbai (Dead) 
By L.rs. & Ors. v. Mohd. Hanifa (Dead) by L.rs., & Ors., [1976] 4 SCC 
780; (Raja} Jagdish Chandra Dea Dhabal Deb v. Gour Hari Mahato & 
Ors., AIR (1936) Privy Council 258; Medapati Surayya & Ors. v. 
F Tondapu Bala Gangadhara Ramakrishna Reddi & Ors., AIR (1948) Privy 
Council 3 and Kali Krishna Tagore v. Seci·eta1y of State for India in 
Council & Anr., (1887-88) 15 Indian Appeal 186, relied on. 
Katragadda China Anjaneyulu & Anr. v. Kattragadda China Ramayya 
G & Ors., AIR (1965) AP 177 (Full Bench), referred to. 
3. ThP, plea, depending on the facts of a given case, is capable of 
being waived, if no.t properly raised at an appropriate stage and in an 
apprnpriate manner. The party adversely affected by the plea of res 
judicata may proceed on an assumption that his opponent had waived 
H the plea by his failure to raise the same. (934-F-G] 
RAJESHW ARI v. T.C. SARA V ANABA VA 
929 
Sha Shivraj Gopalji v. Edappakath Ayissa Bi & Ors., AIR (1949) A 
Privy Council 302, distinguished. 
Pritam Kaur wlo S. Mukand Singh v. S

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