Shankar Goswami v. Sarita Goswami & Anr.

(IV) To pass a decree of half possession of property bearing No.K-139, Dakshinpuri, Delhi-62 by partitioning the same by meets and bounds which is more specifically shown in red colour in the site plan attached in favour of the plaintiff.

(V) To pass a decree of permanent injunction whereby the defendant no.1 be restrained from dispossessing the plaintiff from the top floor of property no.K-139, Dakshinpuri, New Delhi-62.

(VI) To the cost of the suit may also be awarded to the plaintiff.

(VII) Pass any other order or further order which this

Hon‟ble Court may deem fit and proper on the facts and circumstances in the interest of justice. It is prayed accordingly.”

7. The reliefs (II) and (V) as prayed for are clearly not maintainable as they seek to interdict the execution of the earlier decree which has attained finality. Thus, prayer (II) and (V) are liable to be rejected at the threshold. However, the question that arises in the present appeal is as to whether the remaining reliefs sought by the Plaintiff are barred by principles of res judicata. The Trial Court has held that Suit No.2 is barred.

8. In the present appeal, the submission of the Plaintiff is that the basic condition of res judicata is not satisfied as Suit No.1 was only in respect of top floor of the property and Suit No.2 was in respect of the entire property. Moreover, it was argued that no issue as to ownership of the property was framed in Suit No.1 and hence the said issue was never gone into. The counsel for the Plaintiff further submits that since, in Suit No.1, the right that was claimed was against a licensee or a tenant, what was adjudicated was not absolute title but only a possessory right. The Plaintiff submits that the question of res judicata is a mixed question of fact and law and Suit No.2 could not have been finally dismissed under Order VII Rule 11 CPC.

9. On the other hand, counsel for the Defendant submits that the Plaintiff had the opportunity of raising the issue of ownership in Suit No.1. In fact, the Plaintiff did raise the issue and was rightly non-suited. Hence, the said issue cannot be re-agitated. He relies on a recent judgment of the Supreme Court dated 6th March, 2018 in Andanur Kalamma and Ors v Gangamma (Dead) by LRs [C.A. No.423-423 of 2018] (hereinafter, „Gangamma‟). Analysis and Findings

10. Though at first blush it appears that the submission of the Plaintiff is correct, on a deeper examination, it becomes clear that there is a fine issue involved in the present case. In a suit where only a question of right to possession is being adjudicated, the Court examines the nature of the right being asserted by the Plaintiff viz-a-vis, the right of the Defendant therein. The Court does not render conclusive findings as to the title in the said property. On the other hand, while granting a declaration of title, the Court goes beyond the documents put forth and adjudicates the competing rights of the parties. This is clear from Sajjadanashin Sayed Md. B.E.Edr. v. Musa Dadabhai Ummer 2000 II AD (SC) 133 (hereinafter, „Sajjadanashin Sayed‟) where the Supreme Court held that if an issue has been collaterally or incidentally decided in an earlier suit that the same would not constitute res judicata. The Supreme Court while approving Mulla on this aspect held as under:

11. The Supreme Court in Sajjanashin Sayed (supra) goes on to hold that even if an issue is framed in the earlier suit, it has still to be examined as to whether the issue arose directly or collaterally/incidentally. Paragraph 19 of the judgment reads as under:

16. The above finding goes to show that the Defendant therein i.e. Sh. Shankar Goswami tried to assert ownership. He then alleged that Smt. Sarita Goswami had no source of income. In his oral deposition, he alleged that the property was purchased by his brother and that he was staying with him. All these are contradictory pleas which were rejected by the Trial Judge. In the first appeal, the Appellate Judge held as under: “From the above mentioned facts and appreciation of evidence of both the parties it is now an admitted fact that the property was purchased in the name of plaintiff by way of notarized documents, in the year 1997, and defendant is staying in the premises since the year 2001. Admittedly the title documents include notarized agreement to sell and that to of the year of

1997. Needless to say that the purchaser / plaintiff was entitle to retain the possession of the premises in part performance of the contract in terms of section 53 A of Transfer of Property Act. (pre amendment period i.e. prior to the year 2001) so there is no dispute that possession of the plaintiff/ purchaser is recognized by law and cannot be challenged by the defendant or even by the seller. Needless to say that defendant has failed to show any of his title documents as claimed by him in his WS, rather in the evidence and at the stage of appeal he has raised additional ground/ allegations regarding benami ownership of plaintiff or that the property was purchased by the husband of the plaintiff which was never the stand of defendant in his WS and therefore, cannot be raised at this stage as they are beyond pleadings. Once the title or possession of plaintiff over the suit property is unquestionable and in the absence of any independent right of the defendant, the defendant can safely be assumed to be a licensee in the suit premises which is also proved by his own allegations that he was inducted in the premises in the year 2001. Hence, being a licensee he cannot go into the question of title of licensor / plaintiff in view of Section 116 of Indian Evidence Act.”

17. From the above extract, it is clear that Sh. Shankar Goswami raised the issue of Benami ownership in the said proceedings and the Appellate Judge also came to the conclusion that the title and possession over the suit property of Smt. Sarita Goswami is unquestionable and the Defendant therein has no right in the property. Under these circumstances, the Appellate Judge held that the Sh. Shankar Goswami was only a licensee. These findings have not been disturbed by the High Court. In fact in paragraph 17 of the High Court judgment, the Ld. Single Judge observes as under:

The SLP against this judgment has been dismissed.

18. Sh. Shankar Goswami, taking a cue from the judgment of the High Court appears to have preferred this suit for declaration of title.

19. A perusal of the three elaborately written judgments leaves no matter of doubt that Sh. Shankar Goswami has repeatedly tried to assert his ownership in the portion of the property where he was residing. The issue of his title was not collateral but was directly called for adjudication. He also asserted ownership of his brother qua the entire property. He further asserted benami ownership of the Plaintiff. He failed on all counts in Suit No.1.

20. Though, Ld. Counsel for the Plaintiff has attempted to draw a distinction between his possessory right and a right based on title in Suit No.1, all rights have been adjudicated in respect of the suit property as Sh. Shankar Goswami himself raised the said issues. As part of the issue in respect of entitlement for decree of possession, the title of Smt. Sarita Goswami and the claim to the title of the Sh. Shankar Gowami have been gone into by the Court. It is not always necessary that an issue as to the title has to be separately framed. If title has been adjudicated as part of the issues struck in a suit for grant of decree of possession, the same would bind the parties and no subsequent suit would lie for declaration of title. In Suit No.1, the issue of title was directly in issue and was not a collateral or an incidental issue.

21. Though res judicata is a mixed question of facts and law, a reading of the three judgments arising out of Suit No.1 makes it clear that all the issues have been adjudicated and no further facts are open for adjudication or left open. Moreover, the reliefs prayed for in the present suit are clearly in the nature of injunction against execution, which is itself barred. The earlier decree having attained finality, the present suit is clearly not maintainable. Following the dictum in Gangamma (supra) if the same issue has directly and substantially arisen in an earlier suit, the same cannot be re-adjudicated. The Supreme Court observed as under:

18. In Halsbury‟s Laws of England (4th Edn.), the expression has been defined as follows: “Cause of action” has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. “Cause of action” has also been taken to mean that particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject-matter of grievance founding the action, not merely the technical cause of action.”

22. The suit filed by Sh. Shankar Goswami is nothing but an attempt to prevent execution of the earlier decree, which has attained finality. Such a suit is completely untenable. The present suit is thus not maintainable. The Trial Court order does not warrant interference.

23. The appeal is, accordingly, dismissed. All pending applications also stand disposed of.

PRATHIBA M. SINGH JUDGE JUNE 01, 2018 Rahul