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.
———————–
[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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