Govindammal (Dead) by Lrs. and Ors. vs Vaidiyanathan and Ors.

s.11 – Res judicata – Applicability of – Between codefendants – Held: For applying the principle of res judicata between co-defendants, there must be conflict of interest between the defendants; it must be necessary to decide the conflict in order to give the relief to plaintiff; and the question between the defendants must have been finally decided – In the facts of the present case, principle of res judicata is not applicable.

Evidence:

Admission – Evidentiary value – Held: Admission is the best piece of evidence – However, admission can always be explained, unless such admission gives rise to the principle of estoppel – Estoppel.

Doctrine:

Doctrine of caveat emptor – Applicability of.

Dismissing the appeal, the Court

HELD: 1.1 It is not in dispute that the entire property of

3.18 acres (now reduced to 2.72 acres) was owned by two brothers ‘P’ and ‘C’. It is also not in dispute that a partition took place between the families of the two brothers through a registered partition under which each of them got 50% of the property which ultimately amounted to 1.36 acres each. 50% of the entire property had fallen to the share of the sons of ‘P’ and the remaining 50% remained with ‘C’. Plaintiffs have inherited 50% of the property, i.e., to the extent of 1.36 acres from ‘P’. It seems ‘C’ fell into debt and his property in question was brought to sale through court auction. Father of the defendant was the purchaser in this court auction. Thus, what could be sold in the court auction was only 50% of 2.72 acres which was held by ‘C’ i.e. 1.36 acres. The remaining 50% of the property (i.e. ‘A’ Schedule) which vested with the predecessor of plaintiffs could not be sold in the court auction. [Para 5] [1101-D-E, F-G; 1102-A-B]

1.2 In absence of the judgment passed in suit which ultimately ended in court sale, it cannot be said as to whether the entire property was the subject matter of the court sale or not. Since ‘C’ was the judgment debtor, at the most, only his share in the property could be sold and it is not open for the purchaser to contend that he purchased the entire property though only 50% of the property belonged to the judgment debtor. The purchaser can not get a higher right, title or interest in the property than what vested with the seller. Ultimately the purchaser takes the risk, if he purchases the property which does not belong to the judgment debtor. The purchaser at an auction sale takes the property subject to all the defects of title, and the doctrine of caveat emptor (let the purchaser beware) applies to such a purchaser. Therefore, even assuming that the court auction sale was held in respect of the entire property, it cannot be said that such sale was valid to the entire extent. At the most, it can be said that it was valid to the extent of the property which was owned by the judgment debtor i.e. 1.36 out of 2.72 acres. The remaining 50%, i.e., schedule ‘A’ property was owned by the predecessor of the plaintiffs. [Para 5] [1102-C-E]

1.3 Present suit is not a mere suit for partition. Primarily it is a suit for declaration of the plaintiffs’ title to the suit property, i.e., ‘A schedule’ property and for permanent injunction restraining the defendants from entering the possession of ‘A schedule’ property, which is nothing but 50% of the entire ‘B Schedule’ property which fell to the share of predecessor of plaintiffs. Alternatively, it was prayed by the plaintiffs that if the plaintiffs and defendant are found to be in joint possession, they be granted the relief of partition and separate possession to the plaintiffs’ half share in ‘B schedule’ property. ‘B schedule’ property measures 2.72 acres in its entirety, whereas ‘A schedule’ property is 50% of ‘B schedule’ property, measuring 1.36 acres, which fell to the share of predecessor of plaintiffs in the partition of 1912. Since the partition had taken place in 1912 and as the plaintiffs inherited the property from their predecessor, they are entitled to 50% of the share in ‘B schedule’ property. The Division Bench has rightly held that the plaintiffs are entitled to ‘A Schedule’ property, which is the half share allotted to their branch in the partition of 1912, out of ‘B Schedule’ property. Thus, the question of maintainability raised by the defendant fails. [Para 6] [1102-F-H; 1103-A-B]

1.4 The plaintiffs need not question the auction sale which was conducted in 1933 inasmuch as, firstly, they are not parties to those proceedings including the execution proceedings and court auction. Secondly, by virtue of auction sale, the purchaser would get only the share vested with ‘C’ inasmuch as he alone was the judgment debtor. The property which is not owned by the judgment debtor could not be sold at all and therefore, even assuming that the sale certificate is wrongly issued in respect of the entire property, the same does not bind the plaintiffs inasmuch they continued to be the owner of 50% of the whole of the property. [Para 7] [1103-C-D]

2.1 It is true that under Section 11 of the CPC, when the matter has been directly or substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, the decree in the former suit would operate as res judicata between the plaintiff and the defendant or as between the co-plaintiffs or codefendants. If a plaintiff cannot get his claimed relief without trying and deciding a case between the co-defendants, the court will try and decide the case in its entirety including the conflict of interest between the co-defendants and the co-defendants will be bound by the decree. But if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound as between each other. [Para 12] [1106-F-H; 1107-A]

2.2 The requisite conditions to apply the principle of res judicata as between co-defendants are that (a) there must be conflict of interest between the defendants concerned, (b) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims and (c) the question between the defendants must have been finally decided. All the three requisite conditions are absent in the present matter. The father of the defendant were colluding in the suits filed by Temple and School. Both of them unitedly opposed those suits. In view of the same, the principles of res judicata would not apply. [Para 9] [1104-C-E]

2.3 In the suit filed by the temple against the father of the defendant, the father of the plaintiffs was also arrayed as defendant No. 2. Even in the suit filed by the school, the defendants therein, i.e. father of the plaintiffs and father of the defendant jointly pleaded that the school was not the owner of the property and that the defendants were the owners. Both the suits filed by the temple and the school came to be dismissed. From the facts and the pleadings as well as the evidence recorded in the said suits, it is amply clear that there was no dispute inter se between the defendants. Since the question of inter se title between the defendant’s father and the plaintiffs’ father was not in issue and was also not required to be decided in the disputes then raised, obviously, the doctrine of res judicata cannot be applied between such co-defendants. [Para 8] [1103-F-H; 1104-B] Mt. Munni vs. Tirloki Nath AIR 1931 PC 114; Syed Mohammad Saadat Ali Khan vs. Mirza Wiquar Ali Beg and others AIR (30) 1943 Privy Council 115; Chandu Lal vs. Khalilur Rahaman AIR (37) 1950 Privy Council 17; Mahboob Sahab vs. Syed Ismail and others (1995)

3 SCC 693; Syed. Mohd. Saadat Ali Khan vs. Mirza Wiquar Ali Beg AIR 1943 PC 115; Shashibushan

Prasad Mishra vs. Babuji Rai AIR 1970 SC 809; Iftikhar Ahmed vs. Syed Meharban Ali, (1974) 2 SCC 151 : [1974] 3 SCR 464 – relied on.

3. It is no doubt true that an admission is the best piece of evidence. However, an admission can always be explained, unless such an admission gives rise to the principle of estoppel. The principle of estoppel could have arisen if the father of the defendant had acted to his detriment on the basis of the representation made by the plaintiffs’ father as the basic requirement for attracting the principle of estoppel, is that the person to whom the representation has been made must have acted on the basis of such representation, and particularly to his own detriment. In the present case, the father of the defendant knew about the correct position on facts and he very well knew that he was the owner to the extent of 50% of the property only, and as he did not act to his detriment, the question of estoppel does not arise. [Para 13] [1107-E-G]

4. The Division Bench of High Court has rightly negated the contention of the defendant relating to adverse possession. From the evidence on record, the trial court and the Division Bench of the High Court came to the conclusion that the defendant had failed to prove that he and his predecessor-in-interest had possession over the entire property to the exclusion of the plaintiffs and their predecessor. No material is found on record which emphatically discloses that the physical delivery of possession of the property was given to the auction purchaser by evicting or in exclusion of all the persons including the plaintiffs’ father and the plaintiffs. In the absence of such material, the trial court and the Division Bench have rightly concluded that there was symbolic delivery of possession in favour of the auction purchaser. However, the subsequent documents show joint possession of the plaintiffs and the defendant. Even now the names of both the parties are found in the revenue records. The documents do not show exclusive possession of either of the parties, but would indicate that they are in joint possession. The records and certain other material on record would negative the contention of the defendant relating to adverse possession. [Para 14] [1108-B-F]