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Thursday, April 13, 2017

Res-Judicata = “In order to operate as res judicata, the finding must be such that it disposes of a matter that is directly and substantially in issue in the former suit, and that the said issue must have been heard and finally decided by the court trying such suit. A matter which is collaterally or incidentally in issue for the purpose of deciding a matter which is directly in issue in the case, cannot be made the basis for a plea of res judicata.”= In our considered opinion, matter in issue in the pending suit before the learned Special Court in LGC No.44/2000 and previous decided suits is not merely identical but very same. Other ingredients of the principle of res- judicata are also fulfilled. Moreover, once identity of the property and the title thereof is finally adjudicated in CCCA No.14/1972, holding that land is situated in Survey No.129/68 Paiki, it operates as res judicata.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL  APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 5113 OF 2017
                  (Arising out of SLP(C) No.26925 of 2010)

M/s Kaushik Coop. Building Society      …     Appellant(s)
                                  :Versus:
N. Parvathamma & Ors.                   ...  Respondent(s)
                                      WITH

                        CIVIL APPEAL NO. 5116 OF 2017
                   (Arising out of SLP(C) No.1632 of 2008)

                        CIVIL APPEAL NO. 5117 OF 2017
                   (Arising out of SLP(C) No.7713 of 2008)

                     CIVIL APPEAL NOS. 5118-5119 OF 2017
               (Arising out of SLP(C) Nos.23724-23725 of 2008)

                     CIVIL APPEAL NOS. 5120-5126 OF 2017
               (Arising out of SLP(C) Nos.27319-27325 of 2008)

                        CIVIL APPEAL NO. 5128 OF 2017
                  (Arising out of SLP(C) No.26142 of 2011)

                        CIVIL APPEAL NO. 5130 OF 2017
                  (Arising out of SLP(C) No.29328 of 2010)

                        CIVIL APPEAL NO. 5131 OF 2017
                  (Arising out of SLP(C) No.26140 of 2011)

CONTEMPT PETITION (C) NO.118/2013 in SLP (C) No.26140/2011



                               J U D G M E N T
Pinaki Chandra Ghose, J.

Leave granted.

Present appeals have been directed against the  common  judgment  and  order
dated 6th August, 2010 passed  by  the  High  Court  of  Andhra  Pradesh  at
Hyderabad in Writ Petition Nos.11869 &  11951  of  2010,  whereby  the  writ
petitions filed by the appellants were dismissed. The High Court was of  the
view that “whether filing of LGC is barred by res-judicata  or  constructive
res-judicata is a mixed question of law and fact, which can be decided  only
on appreciation of evidence led in to the said effect”. The High  Court  was
further of the view that the Special Court constituted under the  provisions
of A.P. Land Grabbing (Prohibition) Act, 1982 (for short “the Act”) did  not
commit any error in taking cognizance of the case being Land  Grabbing  Case
No.44/2000.

Since the present appeals, by special leave, have been filed  assailing  the
same common judgment, they were heard together and are being disposed of  by
this common judgment. For the sake of convenience, Civil Appeal arising  out
of Special Leave Petition (Civil) No.26925 of 2010  is  taken  as  the  main
appeal. It is imperative to record brief facts  for  the  disposal  of  this
case, which are as follows:

One V.R.K. Shastry had purchased the land to an extent of 12 acres 9  guntas
out of 16 acres 9 guntas of land in Survey  No.129/68  Paiki  from  one  Md.
Moulana vide agreement dated 29.12.1963. A suit for specific performance  of
the said agreement having been dismissed, V.R.K.  Shastry  filed  an  appeal
before the High Court of Andhra Pradesh which was numbered as CCCA No.14  of
1972. The High Court of Andhra Pradesh while allowing  CCCA  No.14  of  1972
vide judgment and decree dated 26.10.1976  decreed  the  suit  for  specific
performance wherein it was held that the  suit  property  was  comprised  in
Survey No.129/68 Paiki  and  not  in  Survey  Nos.139/51  &  129/52  and  is
separate and distinct land.  It  is  pertinent  to  mention  here  that  the
defendant died during pendency of suit and his  legal  representatives  were
impleaded in the aforesaid suit, who had earlier  raised  the  objection  of
different survey numbers. Subsequently, the decree in  CCCA  No.14  of  1972
came to be amended by the High Court and the judgment debtors were  directed
to execute the sale deed in favour of the decree holder or his nominee.

After obtaining the decree V.R.K. Shastry applied for  exemption  under  the
ULC Act.  The  Government  of  Andhra  Pradesh  vide  G.O.Ms.  No.523  dated
26.03.1979 granted exemption in favour of V.R.K. Shastry. Part of said  land
was  purchased  by  the  appellant  society  and  Municipal  Corporation  of
Hyderabad sanctioned layout in  File  No.45/layout/8/85  in  favour  of  the
appellant society for development of 7.00 acres of land out of  12  acres  9
guntas in Survey No.129/68 Paiki. Rest of the  portion  in  the  above  said
decreetal land was assigned to one V. Narsimha Reddy and  others  under  the
Assignment Deed dated 15.01.1988. Later, 41 sale deeds  were  registered  in
favour of the assignees, after this Court  on  12.09.1994  dismissed  SLP(C)
No.11381/1994 filed by the judgment debtors and  upheld  the  order  of  the
executing court permitting the assignees to obtain registered sale deeds  in
their favour. The High Court dismissed the  appeal  being  AAO  No.2647/1998
vide its order dated 27.10.1998 and  the  order  of  the  learned  executing
court attained finality.

Between year 1989 and 1996, three different land grabbing  cases  under  the
Act were filed in the Special Court against the  appellant  society  by  the
legal representatives  of  deceased  Md.  Moulana,  Sai  Nagar  Housing  Co-
operative Society and the State of Andhra  Pradesh,  being  LGC  No.46/1989,
LGC No.29/1992 and LGC No.15/1996 respectively, alleging that  the  property
claimed by the appellant herein was not a part of Survey No.129/68 but  that
of Survey No.129/51 and 129/52. All the land grabbing cases  were  dismissed
and when a batch of writ petitions were filed in the High  Court  of  Andhra
Pradesh, the same were dismissed vide a  common  judgment  dated  01.05.2007
passed by the High Court. The High Court in said common judgment had  upheld
that the disputed property is part of land in Survey No.129/68 and the  same
belonged to the appellant society. It is pertinent to mention here that  LGC
No.15/1996 was dismissed as withdrawn.

One K. Balram and few others filed another Land Grabbing Case No.44 of  2000
before the Special Court established under the Act in  respect  of  Land  in
Survey No.129/52, RS No.327, claiming that  he  and  other  members  of  the
Hindu Joint Family, he as the manager, had purchased the  disputed  property
under the registered Sale Deed  dated  25.03.1967  from  one  of  the  legal
representatives  of  Md.  Moulana,  namely,  Abdul  Rub.   The   above-noted
purchaser/ assignee of the land, namely, V. Narsimha Reddy was impleaded  in
the said case and the applications filed by the said V. Narsimha  Reddy  and
the appellant herein, for quashing  of  LGC  No.44/2000  on  the  ground  of
maintainability, were dismissed vide order dated 30.04.2010.

Being aggrieved the appellant herein and the above named V.  Narsimha  Reddy
filed Writ Petition Nos.11951/2010 and 11869/2010, respectively, before  the
High Court of Andhra Pradesh for quashing of LGC No.44/2000. The High  Court
vide impugned common judgment dismissed both the writ petitions  and  upheld
the order passed  by  the  Special  Court  whereby  it  was  held  that  LGC
No.44/2000 in the Special Court is maintainable. Hence, the present  appeals
by special leave.

After perusing the entire material placed  on  record  before  us,  we  have
noticed that High Court had framed two points for consideration, viz.,

Whether the Special Court committed any illegality in taking  cognizance  of
the case under Section 8(1) of the Act?

Whether LGC pending before the Special Court is liable  to  be  rejected  by
setting aside the common order dated 30.04.2010 passed in  I.A  Nos.585/2007
and 216/2010 and allowing the said petitions?



We have further noticed that the High Court  has  answered  both  the  above
questions in the negative and observed that entire trial  has  already  been
completed except the cross-examination of  Mandal  Revenue  Officer  in  the
said pending LGC. It was further observed that  whether  filing  of  LGC  is
barred by res-judicata or constructive res-judicata, is a mixed question  of
law and fact, which can be decided only on appreciation of evidence  led  to
that effect.

We have carefully perused the entire record and in our considered view,  the
only question of law which requires to be answered by this Court is:

Whether the High Court is justified in not quashing the proceedings  in  LGC
No.44/2000, when the Special Court  ex-facie  lacks  jurisdiction  over  the
subject matter in the instant case  in  the  light  of  principles  of  res-
judicata?



The main point revolves around  the  principles  of  res-judicata  which  is
neither against public policy nor res-integra to civil procedure  prevailing
in our country. The doctrine of res judicata is a  wholesome  one  which  is
applicable not merely to matters governed by the provisions of the  Code  of
Civil Procedure but to all litigations, as was observed  by  A.Alagiriswami,
J. in Bombay Gas Co. Vs. Jagannath Pandurang, (1975) 4 SCC 690 (para 11).

The question of res-judicata is not res integra to our judicial system.  The
rule of res judicata while founded on ancient precedent  is  dictated  by  a
wisdom which is for all time and that the application of  the  rule  by  the
Courts should be influenced by no technical considerations of form,  but  by
matter of substance within the limits allowed by law: Sheoparsan  Singh  Vs.
Ramanandan Prasad Narayan Singh, AIR 1916 PC 78.  Furthermore,  it  is  well
settled that the principle of res judicata is applied  for  the  purpose  of
achieving finality in litigation as laid down by this Court in the  case  of
Sri  Bhavanarayanaswamivari  Temple  Vs.  Vadapalli  Venkata   Bhavanarayana
Charyulu, (1970) 1 SCC 673, relevant paragraph of which is quoted below:

"8. … It was observed that the doctrine of res judicata is not  confined  to
a decision in a suit but it applies to decisions  in  other  proceedings  as
well. But how far a decision which is rendered  in  other  proceedings  will
bind the parties depends upon other considerations one of which  is  whether
that decision determines substantial rights of  parties  and  the  other  is
whether the parties  are  given  adequate  opportunities  to  establish  the
rights pleaded by them. The doctrine of res judicata is not confined to  the
limits prescribed in  Section  11,  Civil  Procedure  Code.  The  underlying
principle of that doctrine is that there should be  finality  in  litigation
and that   a   person   should   not   be vexed   twice over   in    respect
  of the   same matter.".

(emphasis supplied)

To constitute a matter res judicata, as  observed  by  this  Court  in  Syed
Mohd. Salie Labbai Vs. Mohd. Hanifa, AIR 1976 SC 1569 = (1976)  4  SCC  780,
the following conditions must be proved: (1)  that  the  litigating  parties
must be the same; (2) that the subject-matter  of  the  suit  also  must  be
identical; (3) that the matter must be finally decided between the  parties;
and (4) that the suit must be decided by a court of competent  jurisdiction.
In the case of Narayana  Prabhu  Venkateswara  Prabhu  Vs.  Narayana  Prabhu
Krishna Prabhu, AIR 1977 SC 1268 = (1977) 2 SCC  181,  it  was  observed  by
this Court: “One of the tests  in  deciding  whether  the  doctrine  of  res
judicata applies to a particular case or not is  to  determine  whether  two
inconsistent decrees will come into existence if it is not applied.”

We have heard the arguments of the learned  counsels.  Learned  counsel  for
appellant society would argue that the main issue in the present  matter  is
not an inter-se title dispute as none of  the  other  parties  are  claiming
title over Survey No.129/68 Paiki but are only  disputing  the  identity  of
the suit land. It was further argued that identity of the suit property  has
been settled to be  in  Survey  No.129/68  Paiki  in  more  than  one  legal
proceeding, few of which have attained finality. It  was  further  submitted
that the impugned judgment does not warrant interference on account  of  the
fact that the Special Court has gone elaborately into the evidence  produced
before it  by the respective parties.

It was further submitted that issues as to what  constitutes  jurisdictional
facts for the purpose of  Sections  2(d)  and  2(e)  of  the  Act  has  been
elaborated upon by this Court in Om Parkash Singh Vs. M. Lingamaiah &  Ors.,
(2009) 12 SCC 613, and taking into consideration  the  extensive  discussion
made by this Court on scope and definition of the terms “Land-grabbers”,  it
could be said that the appellant society is a land grabber.

Per contra, the counsel  for  respondents  has  submitted  that  respondent,
namely, Sri Sai Nagar Co-operative Housing Society Ltd.  was  recognized  as
the vendors by the respondent State by way of Government Order.  He  further
submitted that Survey No.129/52 has been re-numbered as  Survey  No.327  and
appellant society and others come within the ambit of Section  2(d)  of  the
Act, because as per  the  Rectification  Deed  from  its  vendors  and  thus
learned Special Court and the High Court are erroneous in  law  because  the
Special Court under the Act has gone beyond jurisdiction.



It was argued by the learned counsel for the respondents that the  principle
of  res  judicata  cannot  be  applied  to  this  particular  case   because
respondent society is bona fide purchaser of the scheduled property  and  as
such both the Special Court and the High Court were wrong  in  coming  to  a
conclusion that the respondent society was to be non-suited  on  the  ground
of res judicata based on the judgment passed in CCCA No.14 of 1972.

Learned counsel  for  respondents  who  are  legal  representatives  of  the
deceased Md.  Moulana,  submitted  that  the  Special  Court  had  requisite
jurisdiction to go into the questions of title and identity. He relied  upon
the judgment of this Court  in  the  case  of  Mandal  Revenue  Officer  Vs.
Goundla Venkaiah & Anr., (2010) 2 SCC 461, para  20,  wherein  it  was  held
that the Land Grabbing  Act  is  a  self-contained  Code  which  deals  with
various facets of Land Grabbing and provides for a  comprehensive  machinery
for determination of various issues relating  to  land  grabbing,  including
the claim of the alleged land grabber that he has  a  right  to  occupy  the
land or that he has acquired title by adverse possession.

It was further submitted by the learned counsel  that  the  findings  in  OS
No.29/1965, CCCA No.14/1972 and the E.A. No.14/1995 in  E.P.  No.20/1995  do
not have force so as to attract principles of res judicata as against  Abdul
Bashisht and his legal heirs and Abdul Rub and his legal heirs. He drew  our
attention to the relevant part  of the order  dated  17.04.1970,  passed  by
the learned II Additional Chief  Judge  in  O.S.  No.29/1965,  which  is  as
follows:

“6. Subsequent to the filing of the suit the fourth defendant  died  and  no
legal representatives have been  brought  on  record.  Hence  the  suit  was
abated against the 4th defendant.”



Learned counsel relied upon the following judgments of this Court:  Williams
Vs. Lourdu Swamy & Anr, (2008) 5 SCC 647; Sajjadda Nashin Sayyeed  Vs.  Musa
Dada Bhai Umar, (2000) 3 SCC 350 and Malia Bajrangi dead through LRs &  Anr.
Vs. Badri Bai wife of Jagannath & Anr, (2003) 2 SCC 464,  wherein  scope  of
Section 11 of the Code of Civil Procedure, 1908 was  discussed  and  it  was
found that when the matter in issue  is  substantially  different  from  the
previous proceedings, res judicata could not be applied.

Learned counsel for respondents (L.Rs. of deceased  Md.  Moulana)  concluded
his arguments while submitting that the Special Court  and  the  High  Court
while appreciating the evidence are per se perverse while relying  upon  the
law laid down by this Court in Shama  Prassanth  Raji  Vs.  Ganapath  Rao  &
Ors., (2000) 7 SCC 522, which is as follows:

“Undoubtedly,  in  a  proceeding  under  Articles  226  and   227   of   the
Constitution the High Court cannot sit in appeal over the findings  recorded
by a competent Tribunal. The jurisdiction of the High Court,  therefore,  is
supervisory and not appellate.



Consequently Article 226 is  not  intended  to  enable  the  High  Court  to
convert  itself  into  a  Court  of  Appeal  and  examine  for  itself   the
correctness of the decision impugned and decide what is the proper  view  to
be taken or order to be  made.  But  notwithstanding  the  same  on  a  mere
perusal of the order of an inferior Tribunal if the High Court  comes  to  a
conclusion  that  such  Tribunal  has  committed  manifest  error  by   mis-
construing certain documents, or the High  Court  comes  to  the  conclusion
that on the materials it is not possible for a reasonable man to come  to  a
conclusion arrived at by the inferior Tribunal or the inferior Tribunal  has
ignored to take into consideration certain relevant materials or  has  taken
into consideration certain materials which  are  not  admissible,  then  the
High Court will be fully justified in interfering with the findings  of  the
inferior Tribunal.”



Before arriving at the conclusion, we would like to emphasize on  the  ratio
of another judgment of this Court in the case of  Ramji  Gupta  &  Anr.  Vs.
Gopi Krishan Agrawal (dead) & Ors., (2013) 9 SCC 438, para 15,  which  reads
as follows:

“In order to operate as res judicata, the  finding  must  be  such  that  it
disposes of a matter that is directly and  substantially  in  issue  in  the
former suit, and that the said  issue  must  have  been  heard  and  finally
decided by the court trying such suit. A matter  which  is  collaterally  or
incidentally in issue  for  the  purpose  of  deciding  a  matter  which  is
directly in issue in the case, cannot be made the basis for a  plea  of  res
judicata.”



We have perused the written notes on arguments of the learned  counsels  for
both the parties and after a punctilious scrutiny  of  complete  record,  we
are of the considered opinion that it may be true that the Court at  initial
stage may not enter into the merit of the matter. Its opinion in the  nature
of things would be a prima facie one. But the Court must also consider  that
the analogy of res-judicata or of the technical  rules  of  civil  procedure
is, in cases like the present one, appropriate and the Courts  are  expected
to administer the law so as  to  effectuate  its  underlying  object.  Court
shall also bear in mind that  the  basic  character  of  this  principle  is
public policy and preventive as to give finality  to  the  decision  of  the
Court of competent jurisdiction and prevent further litigation.

In our considered opinion, matter in issue in the pending  suit  before  the
learned Special Court in LGC No.44/2000 and previous decided  suits  is  not
merely identical but very same. Other ingredients of the principle  of  res-
judicata are also fulfilled. Moreover, once identity  of  the  property  and
the title thereof is finally adjudicated in CCCA  No.14/1972,  holding  that
land is situated in Survey No.129/68 Paiki, it operates as res judicata.

Judged in this background and the principle set out  above,  the  inevitable
conclusion is that both the Special Court and the High Court have  committed
error in not appreciating  the  fact  that  orders,  judgments  and  decrees
passed in previously decided land grabbing  cases  have  attained  finality,
wherein it was  reiterated many a times  that  the appellant  society   i.e.
M/s. Kaushik Coop. Building Society  is  the  owner  of  the  suit  property
which is comprised of Survey  No.129/68  and  not  in  Survey  No.129/51  or
129/52 (which  has  been  re-numbered  as  327).  Thus,  in  our  considered
opinion, the approach of the High Court in the impugned order  seems  to  be
erroneous.  Therefore,  the  question  before  us  is,  thus,  answered   in
negative.

Hence, the appeals filed by the appellant society  are  hereby  allowed  and
the  appeals  filed  by  the  respondents  herein  are   hereby   dismissed.
Consequently, the impugned judgment passed by the High  Court  as  also  the
order passed by the Special Court in I.A. No.585/2007 and  I.A.  No.216/2010
in LGC No.44/2000, are hereby  quashed  and  set  aside.  Contempt  Petition
(Civil) No.118 of 2013 in  SLP(C)  No.26140 of 2011  filed  by  respondents,
namely, Sara Abdul Gafoor & Ors., is also  dismissed.   There  shall  be  no
order as to costs.

                               ……..………….………….J

                           (Pinaki Chandra Ghose)



                               ……..………….………….J

New Delhi;                              (Uday Umesh Lalit)

April 11,  2017.

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