TMI Blog1981 (11) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... er improvements had been affected by her to the property. Being in need of money, she entered into an agreement with the appellant for a loan of ₹ 2,000 and it was decided that simultaneously she should execute a nominal document of sale and a rent note. These documents were executed on January 7, 1953. She alleged that the documents were never intended to be acted upon, and that the rent paid by her represented in fact interest at 18% on the loan. She continued in possession of the house property throughout and, it is said, carried on repairs from time to time. It was stated that the appellant was attempting to enforce the document as a sale deed by filing suits in the Court of Small Causes for recovery of rent. As two suits had resu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... When this appeal was heard by us, it appeared that the parties may settle the dispute by negotiated compromise. It seems, however, that no compromise has been possible. Accordingly, we proceed to dispose of the appeal on its merits. Two points have been raised before us. The appellant urges that the Small Causes Court decrees, in view of the general principles of res judicata, precluded the trial of the question whether the sale transaction was a genuine transaction. The other point concerns the operation of section 92 of the Evidence Act. The successive suits were filed by the appellant against the respondent in the Court of Small Causes for recovery of arrears of rent. In each suit the appellant contended that she was owner of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit, and that on the general principles of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not necessary, it was said, that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject matter . The observations were made in considering the question whether decisions on matters in controversy in writ petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at a Court of Small Causes could render a finding on an issue as to title to immovable property but only in a suit which did not ask for that relief and merely for payment of a sum of money. Our attention was drawn to Asgarali Roshanalli and another v. Kayumalli Ibrahimji, but we find nothing there of assistance to the appellant. Reliance was placed on the decision of the Allahabad High Court in Lala Jageshwar v. Shyam Behari Lal. There a learned Single Judge took the view that as a Court of Small Causes is a Court of exclusive jurisdiction the restrictive conditions imposed by s 11 of the Code of Civil Procedure requiring two-fold competency of the Court whose decision is to operate as res judicata cannot be invoked. It was sufficient, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he determination or enforcement of any right or interest in immovable property. In order to operate as res judicata the finding must be one disposing of a matter directly and substantially in issue in the former suit and the issue should have been heard and finally decided by the court trying such suit. A matter which is collaterally or incidentally in issue for the purposes of deciding the matter which is directly in issue in the case cannot be made the basis of a plea of res judicata. It has long been held that a question of title in a Small Cause suit can be regarded as incidental only to the substantial issue in the suit and cannot operate as res judicata in a subsequent suit in which the question of title is directly raised. Poholi Mul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself. Sub-s. (1) of s. 92 declares that when the terms of any contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms And the first proviso to s. 92 says that any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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