Isher Singh vs Sarwan Singh And Ors.

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Not extracted

Decision Date: 30 September 1964

Coram: A.K. Sarkar, N. Rajagopala Ayyangar, R.S. Bachawat

In this case, the Court noted that the matter titled Isher Singh versus Sarwan Singh and others, decided on 30 September 1964, was heard by the Supreme Court of India. The judgment was authored by Justice N. Rajagopala Ayyangar, and the bench comprised Justices A. K. Sarkar, N. Rajagopala Ayyangar, and R. S. Bachawat. The issue presented for determination on the leave petition concerned whether a finding in an earlier suit between the same parties regarding the respondent’s relationship to the deceased owner constituted res judicata in the present suit. The original owner of the suit properties was a man named Jati. The properties comprised roughly sixty six bighas of agricultural land and a kutcha house in the village of Kotla, and additionally about thirteen bighas of land in a neighbouring village. Jati died childless on 20 May 1951, and his widow also predeceased him. The respondents, identified as Sarwan Singh and three others, asserted that they were collaterals of the deceased and therefore his nearest heirs. Shortly after Jati’s death, the appellant, Isher Singh, advanced a claim based on an oral will allegedly made by Jati, and consequently obtained possession of the properties. The respondents applied to the revenue authorities for mutation of the land titles in their favour and obtained orders granting such mutation, disregarding the appellant’s oral‑will claim. Because the mutation proceedings did not finally resolve the parties’ title to the properties, Ishar Singh challenged the respondents’ right by instituting a suit for declaration of his title and for a permanent injunction restraining interference with his possession. This suit was filed in the Court of Sub‑Judge, Second Class, Rajpura, on 20 January 1954.

The specific allegation in Isher Singh’s plaint was that Jati had disposed of the property to him through an oral will, and the trial court found against Isher Singh and dismissed his suit. An appeal to the District Judge also failed, and a second appeal to the High Court was dismissed at the preliminary stage. Despite the final dismissal, Isher Singh remained in possession of the property, having not surrendered it after the judgment. Consequently, the respondents initiated a fresh suit before the same Subordinate Judge on 23 May 1956, seeking possession on the basis of their claim as the nearest collaterals of Jati. In that plaint the respondents asserted that Isher Singh held no title to the property and that the oral will relied upon by him had been rejected. They further claimed that their relationship to Jati had been determined in the prior suit and that the question of that relationship was therefore res judicata between the parties. The appellant defended the suit by maintaining that the respondents were not collaterals of Jati and thus had no title to dispossess him. He also asserted that the earlier judgment concerning the respondents’ relationship did not constitute res judicata between the parties. The learned Subordinate Judge decreed in favour of the respondents, granting them possession of the property and holding that the issue of relationship was not barred by res judicata. An appeal to the learned Additional District Judge, Patiala, was dismissed on the same ground, and a subsequent appeal to the High Court was also dismissed. Thereafter, the appellant obtained special leave to approach this Court, and the present appeal before the Supreme Court arose. The central question for the Supreme Court was the correctness of the High Court’s decision that the earlier finding on relationship was not res judicata.

The respondents contended that the oral will had been rejected, that their connection to the deceased Jati had already been determined in the earlier suit filed by Isher Singh, and that the question of that relationship was therefore barred by the principle of res judicata. In response, Isher Singh asserted that the respondents were not collaterals of Jati, and consequently they possessed no title to dispossess him. He further maintained that the finding recorded in the prior proceeding regarding the respondents’ relationship was not subject to res judicata between the parties.

The learned Subordinate Judge consequently issued a decree granting possession of the property to the respondents, holding that the plea concerning the relationship was not barred by res judicata. An appeal against this decree was filed before the learned Additional District Judge at Patiala, and that appeal was dismissed on the same ground. A subsequent appeal to the High Court was likewise dismissed. Thereafter, the appellant obtained special leave to approach the Supreme Court, and the present appeal before this Court arose from that High Court decision. The matter before the Court was whether the High Court was correct in holding that the respondents’ claim to title as the next heirs of Jati was barred by res judicata.

The issue presented for determination did not primarily concern the scope of the doctrine of res judicata or its underlying law, but rather the application of established principles to the facts of this case. The principal submission of the counsel for the appellant, Mr. Bishan Narain, was that the question of whether the respondents were collaterals of the deceased Jati was not “a matter directly and substantially in issue” in the earlier suit. This question, the counsel argued, had to be examined by considering (a) the pleadings in the former suit, (b) the issues that had been expressly raised therein, and (c) the decision rendered in that suit.

With respect to the pleadings, the earlier suit did raise a dispute concerning the respondents’ status as collaterals of Jati. The plaint filed by Isher Singh on 20 January 1954 was brief. In paragraph 2 of that plaint, the plaintiff recounted the death of Jati, noting that Jati left no widow or issue. The plaintiff further stated that he had rendered service to Jati, and that, being pleased with him, Jati had made an oral will bequeathing all of his movable and immovable property to the plaintiff, thereby declaring the plaintiff to be his heir. Paragraph 3 of the plaint described the proceedings relating to mutation of the property, and it observed that the oral will could not be admitted as evidence in those proceedings, resulting in the revenue authorities rejecting the plaintiff’s claim. Paragraph 4, which is highly pertinent, read in full: “The defendants are altogether strangers and not heirs. They are not at all related to Jati deceased.”

Paragraph four of the plaint stated that the defendants were not collaterals of the deceased Jati, that they belonged to a different family, and that the oral will made in favour of the plaintiff was valid and could not be contested. Consequently, the plaintiff asserted that the defendants possessed no right of succession with respect to the disputed land. In paragraph five, after describing the mutation proceedings, the plaintiff explained that the defendants were deliberately denying his ownership and were threatening to take possession of the land, thereby giving the plaintiff a justified reason to institute the suit. Paragraph six continued the narration by reporting that the plaintiff had repeatedly requested the defendants to acknowledge his ownership and to refrain from entering the land, but the defendants had either given evasive answers or had flatly refused, as occurred at Kotla a week earlier. The plaintiff further claimed that his right to sue had arisen on 7 October 1953, the date on which the Financial Commissioner of Patiala issued his order. The relief prayed for consisted of a declaration that the plaintiff held title to the suit properties and an order of permanent injunction restraining the defendants from taking possession of the land that formed the subject of the suit.

In the written statement filed by the respondents, paragraph four of the plaint was specifically addressed in paragraph four of the written statement. The respondents contended that the defendants were the collaterals and reversioners of the deceased Jati and therefore legal heirs of his estate after his death. They denied the existence of the oral will, argued that under law a property could not be transferred by such a will, and maintained that any claim based on the will required a probate before a court could entertain it. These contentions formed the basis of the trial. The learned Subordinate Judge framed three principal issues for determination. The first issue concerned whether Jati had executed an oral will and, if so, whether that will was valid. A closely related defensive plea raised the proposition that even if the will were proved, the absence of probate would preclude the will from conferring any title. The third issue, which was directly relevant to the present appeal, asked whether the defendants were collaterals of the deceased Jati. Evidence was presented by both parties on the third issue as well as on the first issue relating to the authenticity of the oral will. The Subordinate Judge found, on issue one, that the oral will had not been proved. On issue three, the Judge also concluded that the defendants, now respondents, had failed to establish that they were collaterals of Jati. Despite these findings, the Subordinate Judge dismissed the suit on the ground that the oral will was not established. Subsequently, Isher Singh appealed the decree of dismissal, and the appeal memorandum was placed before the higher court.

The record does not contain the memorandum of grounds of appeal presented by the petitioner, and consequently the Court is unable to determine the precise arguments that were advanced before the appellate tribunal. The respondents, identified as Sarwan Singh and others, also lodged an appeal before the District Judge, contesting the finding that they were not the collaterals of the deceased Jati. Both appeals were heard together. The District Judge rejected Isher Singh’s appeal concerning the authenticity of the oral will that he relied upon, while permitting the appeal of Sarwan Singh and the other respondents. In doing so, the Judge recorded a finding that the respondents were, in fact, the collaterals of the deceased Jati. Following that decision, Isher Singh pursued further relief in the High Court against both appeals. The High Court dismissed the second appeal and also rejected a revision petition that sought to set aside the judgment in Sarwan Singh’s appeal on preliminary grounds. The present question therefore is whether, in light of those events, the issue determined by the learned Additional District Judge in the appeal filed by Sarwan Singh amounts to res judicata in the current suit.

To address that question, the Court first examined the earlier trial proceedings. It observed that the requirements of Explanation 3 to Section 11 of the Civil Procedure Code were satisfied because one party asserted a factual claim and the opposing party denied it. The trial judge identified the factual dispute, and both sides adduced evidence to support their respective positions. Counsel for the respondents, however, argued that the question of whether the respondents were collaterals of the deceased did not constitute a matter that was “directly and substantially in issue” in the earlier suit, since the suit was dismissed notwithstanding a finding in favour of the plaintiff on that point. The Court noted that this submission warranted careful consideration. It further explained that determining whether a matter is “directly and substantially in issue” depends on whether a decision on that matter would materially influence the outcome of the suit. By closely reviewing the plaint, the Court found that the allegation concerning the collateral relationship was not an accidental or irrelevant claim; rather, it bore significance for the relief sought. The plaintiff, Isher Singh, claimed title to the property on the basis of an oral will. If that claim were upheld, his possession would be lawful and based on a recognized title, thereby supporting his suit. Nonetheless, the plaintiff also asserted that, even apart from the title alleged under the oral will, he was lawfully in possession of the land. Consequently, even if the claim of title under the oral will were rejected, the plaintiff would still be entitled to the relief he sought.

In the suit the plaintiff asked for two specific forms of relief. First, he sought a declaration concerning his possessory title to the land. Second, he requested a permanent injunction that would forbid the defendants from disturbing his possession as long as the defendants could not prove a title that was superior to his own. The counsel representing the appellant did not challenge either of these requests. By accepting the relief, the court effectively recognized that the plaintiff’s possessory title was valid against all persons except the true owner of the property. In paragraph 4 of the plaint, the plaintiff, Isher Singh, argued that the defendants possessed no title that could give them a better right of possession than his. The significance of the prayer in paragraph 6 of the plaint became apparent at this stage. The plaintiff’s prayer stated: “A declaratory decree in respect of agricultural land etc. be passed in favour of the plaintiff against the defendants.” This wording indicated that the declaration the plaintiff desired was not limited only to the title he claimed under the oral will; rather, it was intended to cover every source of his claim, whether as a legatee under the will or as a person who had peacefully possessed the land. Accordingly, the permanent injunction sought by the plaintiff was meant to follow from the declaration and to protect both possible sources of his title. The defendants, for their part, raised a plea that touched on two matters. First, they questioned the authenticity and legal effect of the oral will. Second, they contended that even if the oral will were set aside, the defendants held a title that would override the plaintiff’s possessory title. Because the pleadings were understood in this manner, the trial court formulated a third issue concerning the collateral relationship of Sarwan Singh and the other defendants to Jati. It would be difficult to explain why the court framed this issue otherwise, since, according to the plaintiff’s counsel, the issue had no direct or even incidental relevance to the matters that needed to be decided for granting the relief sought in the suit.

The trial court ultimately dismissed the suit, even though it had rendered a finding on issue 3. From that dismissal, however, no clear inference could be drawn against the respondents regarding the correct construction of the pleadings, the proper identification of the issues, or the overall conduct of the trial. Moreover, the court’s decision did not resolve whether the question of the respondents’ heirship was “a matter directly and substantially in issue” within the suit. It is conceivable that the dismissal was erroneous and that the trial court misdirected itself when it issued a judgment on the legal title of a person who was merely in possession of the property. Nevertheless, the proceedings did not conclude at that point, because if they had, the question could arise whether the respondents would be barred by the principle of res judicata. Following the trial judge’s decision, two appeals were filed – one by the plaintiff Isher Singh and the other by the defendants Sarwan Singh and the other respondents.

In the proceedings there were two separate appeals: one filed by Isher Singh and the other filed by Sarwan Singh together with other respondents. The present discussion concentrates on the appeal filed by Sarwan Singh. In that appeal the appellate Judge set aside the judgment of the trial court and, on the basis of the evidence presented by the parties, concluded that Sarwan Singh and the other respondents were collaterals of the deceased Jati. The next contention advanced by the counsel for the appellant, identified as Mr Bishen Narain, was that the appellate court had acted without jurisdiction. He argued that the issue of familial relationship was irrelevant to the determination of any question raised in the original suit and therefore the appellate court should not have addressed it. Regarding the power of the appellate court to make a finding, counsel contended that Section 96 of the Civil Procedure Code permits an appeal only against a decree and not against a finding that is not incorporated in the decree. Since the suit of Isher Singh had been dismissed in its entirety despite a finding that negated the collateral relationship claimed by Sarwan Singh and others, counsel submitted that no appeal could be taken to the District Judge on that finding, rendering the District Judge’s finding in the appeal incompetent and beyond jurisdiction. Counsel relied on the language of Section 44 of the Indian Evidence Act, emphasizing the phrase “Competent Court.” The Court rejected this submission outright. Earlier, a preliminary objection concerning the maintainability of the appeal on precisely these grounds had been raised before the appellate court, which dismissed the objection and held that the appeal was maintainable. A subsequent revision petition was filed in the High Court challenging the appellate decision on the same basis of Section 96, and that revision was also dismissed, the High Court’s order thereby becoming final. Even assuming that the appellate court had erred in interpreting Section 96 or the pleadings, the Court held that the appellant could not now claim that the appellate court lacked jurisdiction to hear the appeal. The District Judge unquestionably possessed jurisdiction to interpret Section 96 of the Civil Procedure Code, and even if that interpretation were mistaken, the appellate judgment could not be treated as a nullity or attacked collaterally as if rendered by an incompetent court. Moreover, the Court observed that in the earlier appeal filed by Isher Singh, which was expressly competent and within the appellate court’s jurisdiction, the finding that denied the heirship of Sarwan Singh and others could have been contested by the respondents under Order 41 Rule 22 in order to preserve the decree in their favour.

In this matter the pleadings and the issue that the trial Judge formulated concerned a claim that was founded on a possessory title. The Court observed that it would have been entirely permissible for Isher Singh to argue before the trial court that the dismissal of his suit was erroneous because the trial Judge’s finding on issue number three was incorrect. Moreover, the Court noted that, had Isher Singh raised such an objection, Sarwan Singh would also have been entitled to contest that finding without the necessity of filing a formal appeal. The existence of a later, independent appeal therefore did not diminish or disturb the jurisdiction of the court that was already seized of the suit. That court retained the authority to examine the correctness of the trial Judge’s finding and to render a decision on that basis, irrespective of any subsequent appeal that might have been raised on a different ground.

The Court further concluded that, in the earlier suit, the heirship of the respondents to the deceased Jati was presented in the precise terms set out in the pleadings; an issue relating to that heirship was expressly framed by the trial Judge; both parties produced evidence directed to that specific issue; the appellate court recorded a finding on the matter; and, on a proper construction of the pleadings, it was necessary to resolve that issue in order to completely determine all points necessary for granting relief to the plaintiff. Consequently, every element required to satisfy the test for the applicability of Section 11 of the Civil Procedure Code was met. A submission was made that the parties were not litigating under the same title because Isher Singh’s claim was based solely on an oral will, which the Court held was irrelevant. The Court found that Isher Singh’s claim in the earlier suit was based both on the oral will and on his asserted right to remain in possession of the property he claimed he had lawfully entered. Accordingly, the argument was rejected as unfounded, and the appeal was dismissed with costs awarded against the appellant.