Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 4083-4084 of 2016, Judgment Date: May 06, 2016

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NOS.4083-4084 OF 2016
              [Arising out of S.L.P.(C)Nos.12915-12916 of 2014]

Satyendra Kumar & Ors.                                         …..Appellants

                                   Versus

Raj Nath Dubey & Ors.                                         …..Respondents




                               J U D G M E N T



SHIVA KIRTI SINGH, J.

The appellants were successful before  all  the  Consolidation  Authorities,
the Consolidation  Officer,  Settlement  Officer  Consolidation  and  Deputy
Director of Consolidation whose orders passed in  title  proceedings,  under
U.P. Consolidation of Holdings Act, 1953 (hereinafter referred  to  as  “the
Act”) were challenged by the non-official  respondents/writ  petitioners  by
preferring Writ B No. 46506 of 2013 and the same has  been  allowed  by  the
judgment and order under appeal dated 8.11.2013 passed by a  learned  Single
Judge of the High Court of Judicature at Allahabad.
High Court has, at the outset recorded in the  judgment  that  there  is  no
factual controversy  in  the  writ  proceedings  and  on  that  account  the
respondents chose not to file counter affidavit. With  the  consent  of  the
parties the arguments were heard at the admission  stage  leading  to  final
adjudication and remand which is under challenge.
The relevant facts necessary for understanding the  subject  matter  of  the
dispute between the parties including the main issue, of  res  judicata  are
clear from the facts noted by the High Court in paragraph 3  and  4  of  the
impugned judgment. They are as follows:
“3. The dispute relates to the land of khatas 1,  3,  4  and  5  of  village
Sarai Aziz, talluka Harikishun, tahsil Phoolpur, district  Allahabad,  which
were recorded in the  names  of  the  respondents,  in  basic  consolidation
record. The consolidation was started in the year 2000, in the village.  Raj
Nath Dubey (petitioner-1) filed an objection (registered as Case No.  18/19)
for recording his name over 1/2 share of the disputed land, along  with  the
respondents. It has been stated by the petitioner that the land  in  dispute
was the property of Kishun,  who  had  five  sons  namely,  Bechai,  Kanhai,
Bindra, Pancham and Sheetal. Bindra, Pancham and Sheetal died issueless  and
the properties of Kishun was inherited  by  Bechai  and  Kanhai  alone.  The
respondents are sons/grandsons of Bechai and the  petitioners  are  sons  of
Kanhai as such they have  1/2  share  in  the  land  in  dispute.  Assistant
Consolidation Officer, by order dated 22.02.2001, referred  the  dispute  to
the Consolidation Officer for decision on merits. Later on, Amar Nath  Dubey
(petitioner-2) filed an application dated 03.03.2001, alleging therein  that
his father Kanhai had three sons namely Jagannath, Amar Nath and  Raj  Nath,
who jointly inherited Kanhai. He had also filed an objection in  respect  of
the disputed land, before Assistant Consolidation Officer but the  same  was
misplaced as such he may be impleaded as an objector  in  the  objection  of
Raj Nath Dubey. The impleadment application moved by  Amar  Nath  Dubey  was
allowed.

4. The respondents contested the objection on the grounds  that  Kanhai  son
of Kishun was unmarried and  died  issueless.  His  share  in  the  land  in
dispute was inherited by them,  who  are  sons/grand  sons  of  Bechai,  his
brother. The petitioners were not the sons of Kanhai. They earlier filed  an
objection during consolidation, in respect  of  the  land  of  village  Chak
Nuruddinpur alias  Nagdilpur,  pargana  Sikandara,  district  Allahabad,  in
which it has been held that Jagannath, Amar Nath and Raj Nath were  born  to
Smt. Ram Pyari due to her illegitimate relations with Kanhai and they  being
illegitimate sons, not entitled to inherit Kanhai. It  was  also  held  that
the respondents were the heirs of Kanhai.  The  judgments  of  consolidation
authorities in the previous proceedings operate as res-judicata between  the
parties and the objection of the petitioners was liable to be  dismissed  on
this ground alone. On the  basis  of  the  pleadings  of  the  parties,  the
Consolidation Officer, framed issues on 30.04.2005. Issue No. 3  was  framed
as to Whether the objection of the petitioners, claiming  share  of  Kanhai,
alleging themselves as his sons, is barred by res-judicata?”

The issue no. 3, as noticed above by the  High  Court,  was  raised  by  the
respondents before the High Court who are appellants  herein.    It  was  on
their  application  that  the  Consolidation  Officer  decided   it   as   a
preliminary issue. The Consolidation Officer noticed  the  earlier  petition
filed in the  year  1966  in  respect  of  land  of  another  village,  Chak
Nuruddinpur alias Nagdilpur between the same parties that had  been  decided
against the writ petitioners by holding that Jagannath, Amar  Nath  and  Raj
Nath were illegitimate sons of Kanhai and not entitled to inherit his  share
because Kanhai was a Brahmin Hindu. It was found that the  earlier  judgment
had become final at the revisional stage and hence it would operate  as  res
judicata against the writ petitioners whose claim of being heirs  of  Kanhai
had been decided against them in the previous proceeding.  Thus,  issue  no.
3 was decided against the writ petitioners leading  to  rejection  of  their
objection on 1.12.2012. The appeal as well as  revision  petition  preferred
by the writ petitioners did not find favour in the light of the findings  in
the  judgments  rendered  in  the  earlier  proceedings  that   Kanhai   was
unmarried; Jagannath, Amar Nath and Raj  Nath  were  his  illegitimate  sons
from Smt. Ram Pyari and hence were not his heirs. The appellate order  dated
6.3.2013 and revisional order dated 23.5.2013 along with the  order  of  the
Consolidation Officer dated 1.12.2012 which were under challenge before  the
Writ Court were scrutinized by the Writ Court with  care  in  the  light  of
submissions advanced by the rival parties.
The stand of the writ petitioners  in  course  of  arguments  was  that  the
judgments  rendered  in  the  previous  proceedings  would  operate  as  res
judicata in respect of issues of facts alone but not in respect  of  a  pure
issue of law as to whether as illegitimate sons of a Brahmin  a  person  was
entitled to inherit the property of his father or not.  In other words,  the
writ petitioners accepted the findings of  fact  in  respect  of  Jagannath,
Amar Nath and Raj Nath being the illegitimate sons of  Kanhai  but  disputed
the other finding that in law such  illegitimate  sons  cannot  inherit  the
property of their father. The previous judgment  on  this  legal  issue  was
disputed by the writ petitioners.  According to them decision on  such  pure
issues of law  could not  operate  as  res  judicata  in  respect  of  other
properties which were not subject matter of the earlier  proceedings  before
the Consolidation Authorities. The writ petitioners  placed  heavy  reliance
upon a judgment of this Court in case of Mathura Prasad  Sarjoo  Jaiswal  v.
Dossibai  N.B.  Jeejeebhoy[1].  This  judgment  was  relied  upon  for   the
proposition that the rule of res judicata is a rule of procedure and  cannot
supersede the law of the land.  According to writ petitioners,  the  law  of
land warrants a view that since Kanhai was unmarried hence his  illegitimate
children born to Smt. Ram Pyari were  entitled  to  inherit  the  estate  of
Kanhai under the Hindu law and they would have priority  in  the  matter  of
inheritance of Kanhai as against his brother’s sons.  The  writ  petitioners
placed reliance upon Section 171 of the U.P. Act no. 1 of  1951  to  support
their submission that illegitimate son was not excluded  and  the  exclusion
cannot be inferred automatically in the absence of statutory  exception.  In
support of the legal principle   that  exclusion  clause  must  be  specific
under the statute,  reliance  was  placed  on  a  full  bench  judgment   of
Allahabad High Court in  Raj Narain Saxena v. Bhim[2] and upon  judgment  of
this Court in Rajendra Prasad Gupta v. Prakash Chandra Mishra[3].
On the other hand the respondents before the Writ Court i.e, the  appellants
herein advanced a submission that principle of res  judicata  is  applicable
in respect of issues relating to facts and law both.  In  support,  reliance
was placed upon this Court’s  judgment  in  Kalinga  Mining  Corporation  v.
Union of India[4]. The appellants also relied upon some case laws  according
to which the illegitimate children were entitled under Section 16  of  Hindu
Marriage Act, 1955 to inherit only  the  self  acquired  property  of  their
father whereas the lands in dispute are claimed to be  with the family  from
the time of Kishun father of Bechai and Kanhai.
The Writ Court accepted the submission  advanced  on  behalf  of  appellants
that as per settled law, the principles of res  judicata,  constructive  res
judicata and estoppel are applicable to the proceedings under the  Act.  The
Writ Court, however made a distinction between binding  nature  of  even  an
erroneous judgment between the same parties in respect of same property  and
the binding nature of such judgment in another proceeding  as  res  judicata
when the subsequent proceeding or suit is for  a  different  property.   For
this purpose it noticed paragraph 10 of the  judgment  in  case  of  Mathura
Prasad Sarjoo Jaiswal (supra). Paragraph 10 is as follows:
“10. It is true that in determining the  application  of  the  rule  of  res
judicata the Court is not concerned with the  correctness  or  otherwise  of
the earlier judgment. The matter in issue, if it  is  one  purely  of  fact,
decided in the earlier proceeding by a competent Court must in a  subsequent
litigation between the same parties  be  regarded  as  finally  decided  and
cannot be reopened. A mixed question of  law  and  fact  determined  in  the
earlier proceeding between the same parties may not, for  the  same  reason,
be questioned in a subsequent proceeding  between  the  same  parties.  But,
where the decision is on a question of law  i.e.  the  interpretation  of  a
statute, it will be res judicata in  a  subsequent  proceeding  between  the
same parties where the cause of action is the same, for the expression  “the
matter in issue” in Section 11 of the Code  of  Civil  Procedure  means  the
right litigated between the parties i.e. the facts on  which  the  right  is
claimed or denied and the  law  applicable  to  the  determination  of  that
issue. Where, however, the question is one purely of law and it  relates  to
the jurisdiction of the  Court  or  a  decision  of  the  Court  sanctioning
something which is illegal, by resort to the rule of res  judicata  a  party
affected by  the  decision  will  not  be  precluded  from  challenging  the
validity of that order under the  rule  of  res  judicata,  for  a  rule  of
procedure cannot supersede the law of the land.”

Following the aforesaid view of this Court, the High Court  held  that  same
view has been followed in the case of Isabella  Johnson  v.  M.A.  Susai[5],
Union of India v. Pramod Gupta[6] and Bishwanath Prasad  Singh  v.  Rajendra
Prasad[7]. The judgments cited on behalf  of  appellants  including  one  in
Kalinga Mining Corporation (supra) were distinguished by holding  that  they
were not an authority for the proposition that a past judgment  between  the
parties in respect of another subject matter/property, even if erroneous  in
law will operate as res judicata in a subsequent suit based  upon  different
cause of action for a different property. The High Court finally  held  that
findings in the previous judgments that Jagannath, Amar Nath  and  Raj  Nath
were born to Smt. Ram Pyari widow  of  Ram  Nath  out  of  her  illegitimate
relations with Kanhai are findings relating to facts and would thus  operate
as res judicata. However the  finding  that  illegitimate  children  of  Ram
Pyari and Kanhai are not  entitled  to  inherit  Kanhai  being  findings  on
issues of law, as held by High Court, would not operate as res  judicata  in
the subsequent proceedings in respect of other properties.  The  High  Court
accordingly modified the orders passed by the Consolidation Authorities  and
directed the Consolidation Officer to conclude the  trial  of  other  issues
and pass final order after allowing the parties to lead their evidence.
Learned Senior Counsel appearing  for  the  appellants  has  submitted  that
concurrent findings  of  Consolidation  Authorities  should  not  have  been
interfered with by the High Court and that  the  High  Court  has  erred  in
holding that the previous judgments though in respect  of  another  property
would not operate as res judicata in respect of pure question of  law  in  a
subsequent proceeding between the same parties. Appellants have  also  filed
written  notes  in  support  of  their  submissions  and  have  relied  upon
following judgments:
(1) Mohanlal Goenka v. Benoy Kishna Mukherjee[8]  and  particularly  on  the
following passage in paragraph 23:
      “23. There is  ample  authority  for  the  proposition  that  even  an
erroneous decision on a question of law operates as ‘res  judicata’  between
the parties to it. The correctness or otherwise of a judicial  decision  has
no bearing upon the question whether or not it operates as ‘res judicata.”

(2) State of West Bengal v. Hemant Kumar Bhattacharjee[9]  and  particularly
on the following extract from paragraph 14:
      “14. ………A wrong decision by a court having  jurisdiction  is  as  much
binding between the parties as a right one and may  be  superseded  only  by
appeals to higher tribunals or other procedure like  review  which  the  law
provides.”

(3) Saroja v. Chinnusamy (Dead) by Lrs. and Anr.[10]

So far as case of  Mohanlal Goenka (supra) is concerned,  the  second  round
of litigation was admittedly in respect of same  property  and  between  the
same parties, after the earlier litigation had attained finality even up  to
the  stage  of  execution.  Since  the  judgment  debtor,  neither  in   the
application filed for setting aside sales nor at initial  stage  raised  any
objection on the ground that the execution  Court  had  no  jurisdiction  to
pass the decree,  it  was  held  that  later  on  the  judgment  debtor  was
precluded from raising the plea of jurisdiction in  view  of  principles  of
constructive res judicata. In the case of State of West Bengal  (supra)  the
main issue related to jurisdiction of the Special Court to  try  a  criminal
offence. One of the submissions advanced before this Court was to ignore  an
earlier order  of  High  Court  which  had  attained  finality  between  the
parties, because of law being settled otherwise in a subsequent decision  of
the Apex Court. In that context it was clarified that the argument  suffered
from a fundamental misconception inasmuch as an  incorrect  decision  cannot
be equated with a  decision  rendered  without  jurisdiction.  The  law  was
succinctly stated by holding  that  a  wrong  decision  by  a  Court  having
jurisdiction is as much binding between the parties as a right one.  Even  a
wrong decision can be superseded only through appeals  to  higher  tribunals
or Courts or through review, if provided by law.
In the case of Saroja (supra) this  Court  found  that  all  the  conditions
necessary to constitute res judicata under  Section  11  of  the  CPC  stood
satisfied in the facts of that case. The main dispute related to two  issues
– (1) whether an ex  parte  decree  could  attract  res  judicata   and  (2)
whether the appellant could be held bound by the  judgment  in  the  earlier
suit when he was not a party to the same although  she  had  acquired  title
from the person who as a party had suffered the ex parte  decree.  Both  the
issues were decided against the appellant of that case by  holding  that  an
ex parte decree was as good as a decree passed after  contest  and  such  ex
parte decree, unless set aside on the ground of fraud or collusion will  not
only bind the original parties to the former suit  but  also  other  parties
who claim under any of them and seek to litigate under the same title.
The aforesaid decisions relied upon by the appellants, in our  view  do  not
distract from the reasoning and correctness of the  findings  given  by  the
High Court that previous proceedings would operate as res judicata  only  in
respect of issues of facts and not on issues of pure questions of  law  when
the subsequent suit or proceeding is based upon a different cause of  action
and in respect of different property though between  the  same  parties.  We
are in agreement with the views of the High Court and hence do not  deem  it
necessary to go into further details of the legal concept  of  res  judicata
and estoppel. It is sufficient to indicate that once a judgment in a  former
suit or proceeding acquires finality,  it  binds  the  parties  totally  and
completely on all issues relating to the  subject  matter  of  the  suit  or
proceeding. This flows from Section 11 of the CPC which  in  turn  is  based
upon ancient doctrines embodied in every civilized system  of  jurisprudence
with almost universal application that an earlier adjudication  between  the
same parties is conclusive in respect of the same subject matter. The  Latin
maxims relevant for explaining the concept of res judicata  clearly  specify
that: (1) no man should be vexed twice for the same cause, (2) it is in  the
interest of State that there should be an end to  a  litigation  and  (3)  a
judicial decision once it has attained finality must be accepted as  correct
between the parties.
The distinction drawn by the High Court in the  impugned  judgment  that  an
erroneous determination of a pure question of law  in  a  previous  judgment
will not operate as res judicata in the subsequent proceeding for  different
property, though between  the  same  parties,  is  clearly  in  accord  with
Section 11 of the CPC. Strictly speaking, when the cause of action  as  well
as the subject matter i.e, the property in issue in the subsequent suit  are
entirely different, res judicata is not attracted and  the  competent  Court
is therefore not debarred from trying the subsequent suit  which  may  arise
between the  same  parties  in  respect  of  other  properties  and  upon  a
different cause of action. In such a  situation,  since  the  Court  is  not
debarred, all issues including those of facts remain open  for  adjudication
by the competent Court and the principle  which  is  attracted  against  the
party which has lost on an important issue of fact in the  earlier  suit  is
the principle of estoppel, more particularly “issue  estoppel”  which  flows
from principles of evidence such as from Sections 115, 116 and  117  of  the
Indian Evidence Act, 1872 and from principles of equity. As a  principle  of
evidence, estoppel is treated to be an admission  or  in  the  eyes  of  law
something equivalent to an admission of such quality  and  nature  that  the
maker is not allowed to contradict  it.  In  other  words  it  works  as  an
impediment or bar to a right of action due to affected person’s  conduct  or
action. “Estoppel by  judgment”  finds  reference  in  the  case  of   Ahsan
Hussain  Abdul  Ali  Bohari,  Proprietor  Abidi  Shop  v.  Maina  W/o  Nathu
Telanga[11]. It is taken as a bar which precludes the  parties  after  final
judgment to reagitate and relitigate the same cause of action or  ground  of
defence or any fact determined by the judgment. If the determination was  by
a Court of competent jurisdiction, the bar will  remain  operative  even  if
the judgment is perceived to be erroneous. If the parties fail  to  get  rid
of an erroneous judgment, they as well  as  persons  claiming  through  them
must remain bound by it.
However, as explained and held by this Court in the case of  Mathura  Prasad
Sarjoo Jaiswal (supra), where the decision is on  a  pure  question  of  law
then a Court  cannot  be  precluded  from  deciding  such  question  of  law
differently.  Such bar cannot be invoked either on principle  of  equity  or
estoppel. No equitable principle or estoppel can impede powers of the  Court
to determine an issue of law correctly in a subsequent  suit  which  relates
to another property founded upon a different cause of action though  parties
may be same. As explained earlier, in such a situation the principle of  res
judicata is, strictly speaking, not applicable at all. So far  as  principle
of estoppel is concerned, it operates against the party and  not  the  Court
and hence nothing comes in the way of a competent court in such a  situation
to decide a pure question of law differently if  it  is  so  warranted.  The
issues of facts once finally determined will however, stare at  the  parties
and bind them on account of earlier judgments or for any other  good  reason
where equitable principles of estoppel are attracted.
In view of the discussion made above we find no merit in the  appeals  which
are therefore dismissed. In the peculiar facts of the case  there  shall  be
no orders as to costs.

                                                          .…………………………………….J.
                                                              [DIPAK MISRA]


                                                          ……………………………………..J.
                                                        [SHIVA KIRTI SINGH]

New Delhi.
May 06, 2016.
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[1]    AIR 1971 SC 2355
[2]    AIR 1966 All 84 (FB)
[3]    (2011) 2 SCC 705
[4]    (2013) 5 SCC 252
[5]    AIR 1991 SC 993
[6]    (2005) 12 SCC 1
[7]    AIR 2006 SC 2965
[8]    AIR 1953 SC 65
[9]    AIR 1966 SC 1061
[10]   (2007) 8 SCC 329
[11]    AIR 1938 Nag 129

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