LexWILLIAMS versus LOURDUSAMY & ANR.
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[2008] 6 S.C.R. 929 WILLIAMS A v. LOURDUSAMY & ANR. (Civil Appeal Nos. 2894-2895 of 2008) APRIL 24, 2008 B [S.B. SINHA AND V.S. SIRPURKAR, JJ.] Code of Civil Procedure, 1908 - s. 11 -Res-judicata - Suit for permanent injunction - On the ground that the plaintiff was in possession of suit land by virtue of oral agreement of c sale - Vendor not made party to the suit - Suit decreed - Subsequent suit by judgment debtor for declaration of title, decreed- Upheld in first appeal- High Court in second appeal holding the subsequent appeal by the judgment debtor barred by res-judicata - Suit for specific performance of contract by D decree holder also dismissed upto High Court - On appeal ... held: Principle of res judicata not attracted to the facts of the present case - Owner of the property from whom the parties claiming their title and interest was not made party in previous suit - Issues framed in subsequent suits were not subject of E adjudication in the former suit - High Court posed unto itself a wrong question. In respect of the suit property, respondent No. 1 filed a suit for permanent injunction against the appellant claiming himself to be the owner of the land, by virtue of F .. oral agreement of sale by and between himself and respondent No.2. However respondent No. 2 was not impleaded as party. Appellant contested the suit on the ground that he had got the right, title and interest by reason of a registered sale deed from respondent No. 2. G Trial judge framed the issues which was only in respect of first respondent's possession of the land. On that issue _, the suit was decreed. Thereafter appellant filed a suit for declaration of title 929 H 930 SUPREME COURT REPORTS [2008] 6 S.C.R. A and recovery of possession impleading both the respondents as parties. First respondent also filed suit for specific performance of contract against the appellant as also against respondent No. 2. Trial Court decreed the suit of the appellant while dismissing that filed by the B respondent No.1 . Appeals against both the judgments were dismissed by first appellate court. In second appeal, High Court held that as the possession of the property had been delivered on the basis of purported oral agreement, the subsequent suit was barred by c applicability of principle of res-judicata. Hence the present appeals. Allowing the appeals, the Court HELD: 1. The principle of res-judicata is not attracted 0 to the facts of the present case. The principles of res- judicata although provide for a salutary principle that no person shall be harassed again and again, have its own limitations. In the previous suit, the respondent No. 2 was not impleaded as a party. In his absence therefore, the issue as to whether respondent No. 2 had entered into an E oral agreement of sale or not could not have been adjudicated upon. The said Court had no jurisdiction in that behalf. If that was decided in the said suit, the findings would have been nullities. Such an issue was not framed. [Paras 11, 12 and 14] [935-A, B, C; 937-D, E] F Sajjadanashin Sayed MD. 8.E. EDR. (D) by LRs. vs. Musa Dadabhai Ummer and Ors. 2000 (3) SCC 350 - relied on. Chief Justice of Andhra Pradesh and Anr etc. vs. L. V.A. G Oikshitulu and Ors. AIR 1979 SC 193; Hasham Abbas Sayyad vs. Usman Abbas Sayyad and Ors. 2007 (2) SCC 355 - referred to. 2.1 In a suit for permanent injunction, the Court had H rightly proceeded on the basis that on the date of the • WILLIAMS v. LOURDUSAMY & ANR. 931 • institution of the suit, the first respondent was in A possession of the disputed land or not. It was not required to enter into any other question. The question as to whether the respondent had been put in possession in terms of an oral agreement of sale was not in issue. Respondent No. 2 was not impleaded as a party. A decree B ,, for specific performance of contract was not prayed for in the said suit. Neither any averment was made, nor in law the same could be made that he had been put in possession by way of a part performance of contract as envisaged under Section 53A of the Transfer of Property c Act. [Paras 5 and 12] [935-D; 933-A, B] 2.2 It is one thing to say that a person is in possession of the land in suit and it is another thing to say that he has a right to possess pursuant to or in furtherance of an agreement for sale which would not only bind the vendor D ;.. but also bind the subsequent
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