TMI Blog2005 (10) TMI 591X X X X Extracts X X X X X X X X Extracts X X X X ..... pal Ward No. 80, Sheet No. 34 situate at Mohalla Gwaltoli in Hoshangabad (M.P) by a registered sale-deed dated February 23, 1981 from one Hiralal Babulal for a consideration of ₹ 12,000/-. In the said deed it was expressly mentioned that Hiralal was the absolute owner of the property and he had full rights to sell the house. It was also stated that in future if any of his brothers or legal representatives would make any claim or raise any dispute or the purchaser would be dispossessed, the seller would pay compensation, damages and costs to the buyer. It was the case of the appellant that Ganpat, brother of Hiralal and Bhagwandas (respondent herein) claimed that Hiralal did not have the right to sell the house inasmuch as it was the ancestral property of their family and was not self acquired property of Hiralal. According to the appellant, both, Ganpat and Bhagwandas took forcible possession of some portion of the house on the southern side of the property comprising of Dhalia (roofed house) and adjoining Angana (open land). Ganpat also constructed Chhapri (thatched roof) thereon. The appellant, therefore, was constrained to file Civil Suit No. 40-A of 1982 in the Court of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... das has not paid rent of Dhalia. In this manner, from statement of plaintiff, it becomes clear that Bhagwandas is tenant of Dhalia of Hiralal since the time for which the house existed. The Dhalia has been sold to plaintiff by Hiralal. Therefore, defendant Bhagwandas became tenant of the plaintiff. In this manner defendant No. 2 Bhagwandas is tenant of Ramadhar. Therefore, it cannot be accepted that possession of defendant Bhagwandas is unauthorized encroachment. 5. Being aggrieved by that part of the order by which the suit of the plaintiff was dismissed against Bhagwandas, he preferred Regular Civil Appeal No. 20-A of 1983 in the Court of Second Additional District Judge, Hoshangabad but it was also dismissed on April 16, 1991 confirming the decree passed by the Trial Court. 6. In view of the fact that defendant-Bhagwandas was held to be tenant of Hiralal and after the sale of property by Hiralal to the plaintiff, Bhagwandas held to be tenant of the plaintiff, he initiated the present proceeding against defendant-Bhagwandas by filing Civil Suit No. 31-A of 1991 in the Court of First Civil Judge, Class II, Hoshangabad for his eviction and for arrears ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and bona fide and he had no other house in the City of Hoshangabad. It also held that defendant had denied title of the plaintiff and on that ground also the defendant was liable to be evicted. In view of the said findings, the Trial Court decreed the suit and directed the defendant to handover possession of the suit properly to the plaintiff along with payment of rent at the rate of ₹ 10/- per month from the date of the suit till the date of the decree. 7. Being aggrieved by the decree passed by the Trial Court, the defendant preferred an appeal in the Court of the First Additional District Judge. Hoshangabad contending that the suit filed against him was not maintainable as there was no relationship of landlord and tenant between the plaintiff and the defendant. The Trial Court submitted the defendant, committed an error of law in passing the decree and directing the defendant to handover possession of the suit property to the plaintiff. The lower Appellate Court observed that two questions had arisen; firstly, whether the landlord-tenant relationship had been established between the plaintiff and the defendant; and secondly, whether the plaintiff required t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the property and the house was a part and parcel of ancestral property and it could not have been sold by Hiralal alone. The contention was expressly negatived by the court and a finding was recorded that it was self-acquired properly of Hiralal. There was no interest of any other member in the said property and sale of house by Hiralal in favour of plaintiff was legal, valid and in accordance with law. The Court observed that defendant-Bhagwandas could not produce any material whatsoever to show as to how he was claiming the ownership right. The Court also recorded a finding that defendant-Bhagwandas was a tenant of part of the property and was paying ₹ 10/- per month to Hiralal. Since Hiralal sold the property to the plaintiff, defendant-Bhagwandas became tenant of new owner-Ramadhar. Defendant Bhagwandas did not challenge the said finding recorded by the Trial Court in that suit. Since no order of eviction was passed against the defendant by Civil Court in view of the finding that the defendant could not be held to be 'trespasser' but tenant of the property, the suit against him was dismissed. The plaintiff preferred an appeal which was also dismissed by the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent and decree passed by the Trial Court deserves to be restored by setting aside the judgment and decree passed by the lower Appellate Court as well as by the High Court It is clear from the evidence adduced by the parties in the former suit as also the decree passed by the Trial Court in Civil Suit No. 40-A of 1982 that Hiralal was the absolute owner of the suit property who had sold the property to appellant-Ramadhar. The appellant, therefore, had become full owner of the property. In the said suit, the respondent herein was also joined as one of the defendants. The respondent-Bhagwandas in that suit contended that the property was joint family property and Hiralal had no right to dispose of that property since other family members had also interest therein. The contention which was expressly taken was specifically negatived by the Court and decree was passed in favour of the plaintiff. Moreover, an order of eviction was also passed against defendant No. 1 Ganpat as he was found to be in unauthorized occupation of the property. Keeping in view the evidence on record that Bhagwandas-present respondent-defendant No. 2 in that suit was paying ₹ 10/- p.m. as rent to Hiralal, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been challenged by defendant-Bhagwandas and hence that finding would operate as res judicata. In this connection our attention has been invited by the learned Counsel to the following decisions; Pawan Kumar Gupta v. Rochiram Nagdeo [1999]2SCR767; P.K. Vijayan v. Kamalakshi Amma and Ors. [1994]3SCR213; K. Ethirajan (dead) by Lrs. v. Lakshmi and Ors. AIR2004SC4295; Marwari Kumhar and Ors. v. Bhagwanpuri Guru Ganeshpuri and Anr. AIR2000SC2629; Madhavkrishna and Anr. v. Chandra Bhaga and Ors. (1997)2SCC203; Konda Lakshmana Bapuji v. Government of A.P. and Ors. [2002]1SCR651; and Most Rev. P.M.A. Metropolitan and Ors. v. Moran Mar Marthoma and Anr. AIR1995SC2001 . In the above decisions, various aspects of the doctrine of res judicata have been dealt with by this Court. In Pawan Kumar Gupta, a suit filed by the plaintiff against the defendant was dismissed by the Court but the Court negatived the contention of the defendant that the plaintiff was not the real owner of the suit property. The Court recorded a finding that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty AIR1985SC1096; Forward Construction Co. v. Prabhat Mandal AIR1986SC391; Direct Recruits Class II Engineering Officers' Association v. State of Maharashtra [1990]2SCR900; Vijayan v. Kamalakshi [1994]3SCR213 ] 15. In the case on hand, it is clear that in the earlier suit, the Court had recorded a clear finding that defendant-Bhagwandas was neither the owner of the property nor he could show any right as to how he was occupying such property except as a tenant of Hiralal. If Bhagwandas was claiming to be in lawful possession in any capacity other than a tenant, he 'ought' to have put forward such claim as a ground of defence in those proceedings. He ought to have put forward such claim under Explanation IV to Section 11 of the Code but he had failed to do so. The doctrine of constructive res judicata engrafted in Explanation IV to Section 11 of the Code thus applies to the facts of the case and the defendant in the present suit cannot take a contention which ought to have been taken by him in the previous suit and was not taken by him. Explanation IV to Section 11 of the Code is clearly attracted and defendant-Bhagwandas can be prevented from taking such ..... 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