Res Judicata; Indian Oil Corporation Ltd. Vs. Joseph Paul [Kerala High Court, 07-09-2016]

Civil Procedure Code, 1908 – Section 11 – Res judicata – Principles of – A mere finding in an earlier proceedings will not operate as res judicata unless the party against whom such a finding has been entered has a right of appeal to challenge the same.

Civil Procedure Code, 1908 – Section 11 – Res judicata – Principles of – A finding on an issue in an earlier suit will operate as res judicata if the court can pass a decree on the basis of the finding on that issue and that issue arises for consideration substantially and directly for adjudication of the rights of parties and the findings in each of the issues are independently sufficient to decide the suit and if such a finding is made and the case was decided on that basis and if the affected party did not challenge the same by filing an appeal, then that finding will operate as res judicata in a subsequent proceedings.

Civil Procedure Code, 1908 – Section 11 – Res judicata – Principles of – the question of res judicata is not a question of law but it is a question of procedure and it is a caution to prevent subsequent suit being filed on the same subject matter which has been decided finally in an earlier proceedings between the same parties or persons claiming under them. So it has to be pleaded and proved by the party claiming that benefit and the court below also has to raise an issue on the question as to whether the finding against the defendant in the earlier proceedings will operate as res judicata in the present proceedings as well.

# Res Judicata

IN THE HIGH COURT OF KERALA AT ERNAKULAM

K.RAMAKRISHNAN, JJ.

R.F.A.No.30 of 2010

Dated this the 7th day of September, 2016

AGAINST THE JUDGMENT OS. NO.864/2007 OF PRINCIPAL SUB COURT, ERNAKULAM DATED 30-06-2009

APPELLANT/DEFENDANT

INDIAN OIL CORPORATION LTD., REPRESENTED BY ITS SENIOR DIVISIONAL MANAGER, PANAMPILLY AVENUE, PANAMPILLY NAGAR P.O., KOCHI-36.

BY ADVS.SRI.E.K.NANDAKUMAR, SRI.P.BENNY THOMAS, SRI.P.GOPINATH MENON, SRI.K.JOHN MATHAI, SRI.MADHU N.NAMBOOTHIRIPAD.

RESPONDENT/PLAINTIFF

JOSEPH PAUL, ERNAKULAM

BY ADVS. SRI.JOSE JOSEPH ARAYAKUNNEL, SRI.VARGHESE PARAMBIL.

JUDGMENT

K. RAMAKRISHNAN, J

The defendant in O.S.No.864 of 2007 on the file of the Sub Court, Ernakulam is the appellant herein.

2. The suit was filed for recovery of possession for the plaint schedule property after removing the constructions therein by the defendant from the possession of the defendant on the basis of the plaintiff’s title and also on the ground of termination of lease agreement and also for recovery of damages for use and occupation with following allegations. The plaintiff is the absolute owner of the plaint schedule property having an area of 10.030 cents of property comprised in survey No.912/2011 and 913/4 of Elamkulam village which he obtained as per partition deed No.2656/72 of S.R.O, Ernakulam. This property was leased out to the defendant for the purpose of erecting petrol pump and service station as per registered lease date No.3098/1981 of S.R.O. Ernakulam executed on 20.7.1981 for a period of 20 years with effect from 1.4.1981. It is alleged in the plaint that in the lease deed so executed, the defendant fraudulently incorporated a clause whereby the lease will automatically and without any further act of any of the parties thereto renew for a period of five years from the expiration of the period of twenty years. According to the plaintiff such a term was incorporated without his knowledge, as he did not know english. That apart, in the certified copy of the lease deed sent to the plaintiff by the defendant that portion, was struck off to mislead him.

3. After the expiry of twenty years, the plaintiff filed O.S.No.396/2001 before the Sub Court, Ernakulam for recovery of possession, but that suit was dismissed on the ground that it is prematured one and also the defendant is entitled to get protection under

# Section 106 of the Kerala Land Reforms Act

The plaintiff filed A.S.No.396/2005 before the District Court, Ernakulam and by judgment delivered on 29.6.2007, the District Court set aside the finding of the trial court that the defendant is entitled to get protection under section 106 of the Kerala Land Reforms Act and held that they are not entitled to get that benefit, but dismissed the appeal on the ground that it was premature as the lease period was not over confirming the finding of the trial court on that aspect. Now the period of lease expired on 31.3.2006 by efflux of time.

4. The plaintiff sent a notice dated 22.8.07 to the defendant calling upon them to pay arrears of rent at the rate of Rs.1,900/- till 31.3.2006 and thereafter at the rate of Rs.15,000/- per mensum being the damage for un-authorised use and occupation of the premises and to remove the structures and to surrender vacant possession of the property to him. After the expiry of the lease, the defendant is not entitled to keep possession of the property. The property is situated in a commercially important area in Ernakulam and it will fetch a rent of Rs.15,000/- per month. So plaintiff is entitled to get rent at the rate of Rs.1,900/- per month from 1.4.2001 to 31.3.2006 and thereafter from 1.4.2006 till 30.09.2007 at the rate of Rs.15,000/- per month as damages for unauthorised use occupation. Since the defendant did not vacate the premises, the plaintiff filed the above suit claiming recovery of possession and for recovery of Rs.36,100/- towards arrears of rent for the period from 1.4.2001 to 31.3.2006, Rs.2,70,000/- towards damages for use and occupation from 1.4.2006 to 30.9.2007 and damages for use and occupation at the rate of Rs.15,000/- per month from the date of suit till surrender possession of the building with12% interest.

5. The defendant entered appearance and filed written statement contending as follows:

The suit is not maintainable. The allegation that plaintiff is the owner of the plaint schedule property is admitted. But the averment that the property was leased out to the defendant in 1981 for a period of twenty years is not correct. The defendant is in possession of the property on the basis of the lease agreement of the year 1966 and it was taken for the purpose of construction of a petrol pump and service station and on the basis of the lease having constructed the building and conducting the service station since 1966, they are entitled to get the protection under section 106 of Kerala Land Reforms Act. The lease deed dated 20.7.1981 is only a continuation of earlier lease deed of 1966 and it cannot be treated as a separate lease. The allegation that further extension of five year period after expiry of 20 years of lease was fraudulently added without the knowledge of the plaintiff etc., is not correct. Those things were found against the plaintiff in the earlier suit. Against the finding of the District Court in A.S.No.376/2005, they are going to prefer appeal before this court and therefore, the finding in the earlier suit will not operate as res judicata as the findings has not become final. There is no willful default on their part in not payment of the rent. It cannot be said that their possession is unauthorised one and they are not liable to pay damages for use and occupation and the rate as claimed by the plaintiff. The plaintiff is not entitled to get any relief and they prayed for dismissal of the suit.

6. On the basis of the rival pleadings court below framed following issues for consideration:

i. Whether the lease deed dated 20.7.1981 is a continuation of the lease deed of 1966?

ii. Whether the defendant is entitled to protection u/s.106 of the KLR Act?

iii. Whether the plaintiff is entitled to recover the plaint schedule property as prayed for?

iv. Whether the plaintiff is entitled to realise arrears of rent as prayed for?

v. Whether the plaintiff is entitled to realise damages for the use and occupation of the plaint schedule property as prayed for?

vi. Reliefs and costs?

7. PW1 was examined on the side of the plaintiff and Exts.A1 to A9 were marked on his side. The officer of the defendant/ Corporation was examined as DW1 and no documents were marked on their side. After considering the pleadings and the evidence on record, the court below found that the question regarding the claim for protection under section 106 of Kerala Land Reforms Act is hit by res judicata, in view of the finding in earlier suit. The court below also held that the earlier lease was surrendered and a fresh lease was executed in the year 1981, the present constructions were made thereafter and therefore, the defendant is not entitled to get protection of Section 106 of Kerala Land Reforms Act. The trial court held that the plaintiff is entitled to get recovery of possession and also a mandatory injunction directing the defendant to remove constructions made by them and to surrender vacant possession of the plaint schedule property and a decree for Rs.36,100/- and Rs.2,70,000/- towards arrears of rent from 1.4.2001 to 31.3.2006 and damages for use and occupation from 1.4.2006 to 31.3.2006 and 1.4.2006 to 30.9.2007 and they are also entitled to realise damages for use and occupation at the rate of Rs.15,000/- per month from the date of suit, till getting vacant possession of the plaint schedule property together with interest at 12% per annum from the date of suit till decree and thereafter at the rate of 6% per annum from the date of decree till the date of realisation. Aggrieved by the same, the present appeal has been preferred by the appellant defendant before the court below.

8. We heard Sri.Deepak, learned counsel representing Sri.E.K.Nandakumar, learned senior counsel appearing for the appellant and Sri.Jose Joseph Arayakunnel and Varghese Parambil, learned counsel appearing for the respondent and perused the records.

9. The points that arise for consideration are:

1. Whether the court below was justified in holding that the defendant is not entitled to get protection under section 106 of Kerala Land Reforms Act?

2. Whether the court below was justified in holding that the claim regarding protection under section 106 of Kerala Land Reforms Act is hit by the principles of res judicata?

3. Whether the court below was justified in holding that the plaintiff is entitled to get recovery of possession?

4. Whether the court below was justified in holding that the plaintiff is entitled to get damages for use and occupation and if so, the quantum of damages awarded is just and proper.

5. Reliefs and costs.

10. Points 1 to 5: The counsel for the appellant submitted that the court below was not justified in holding that the claim for protection under section 106 of Kerala Land Reforms Act is hit by res judicata as it was decided in the earlier suit against the defendant. He contended that the suit as well as the appeal were dismissed as premature and there is no right of appeal available to the appellant in this regard. Further the court below failed to note the fact that the lease was of the year 1966 and the constructions were made prior to the appointed date namely 20th May, 1967 and Ext.A2 lease deed of 1981 is only a renewal of the same and there was no express or implied surrender of the earlier lease and as such they are entitled to get protection under section 106 of Kerala Land Reforms Act. According to the learned counsel, the quantum of damages awarded for use and occupation is high.

11. On the other hand, the learned counsel for the respondent submitted that there was clear finding against the defendant in respect of the claim made by them regarding protection under section 106 of Kerala Land Reforms Act, in the earlier suit, which in fact arose for consideration and that issue was a directly and substantially issue in that suit and was decided against the defendant in that suit. So that finding is res judicata in the subsequent suit and they are estopped from claiming that right in this suit. The learned counsel also argued that the earlier lease was granted by the father of the plaintiff in the year 1966 and before the expiry of the term, a portion of the property including the building constructed by the defendant was acquired by the Government and compensation for the building was given to the defendant and the land to the plaintiff and thereafter the defendant surrendered the remaining area and after retaining some portion of the land, the plaintiff executed a fresh lease in the year 1981 on fresh terms and it is on the basis of that entrustment, the present buildings were constructed and therefore it cannot be said that it is a renewal of the earlier lease deed of 1966 so as to claim the protection available under section 106 of Kerala Land Reforms Act. So the court below was justified in holding that the defendant is not entitled to get protection under section 106 of the Kerala Land Reforms Act and rightly ordered recovery of possession and a mandatory injunction directing the defendant to remove the constructions made by them and to vacate the premises. Considering the location of the property and its extent, the court below was perfectly justified in fixing the quantum of damages payable after the expiry of the period of lease at the rate of Rs.15,000/- per month. So according to the learned counsel, the decree and judgment passed by the court below are just and proper and do not call for any interference.

12. It is an admitted fact that the plaint schedule property and the land lying adjacent to it was earlier leased out to the defendant, Corporation by the father of the plaintiff for the purpose of conducting a petrol pump and service station in the year 1966 and the defendant had put up buildings and started the business in that premises. It is also an admitted fact that a portion of the property having an extent of 3.38 Ares was later acquired by the Government in the year 1977 with the buildings therein and the land value was given to the plaintiff and the value of the buildings given to the defendant as evidenced from Ext.A9 and this fact was not in dispute as well. It is also an admitted fact that an extent of 17.1 Square Meters of land was retained by the plaintiff and only the balance extent was leased out to the defendant as per Ext.A2 lease deed No.1398/1981 dated 20.7.1981 for a period of 20 years with a right of renewal for another period of five years after the expiry of 20 years even without a fresh lease deed or renewal of lease deed, on the same conditions. There is no dispute regarding the fact that after the death of the father of the plaintiff, the properties were partitioned as per Ext.A1 partition deed and the plaint schedule property along with other properties were allotted to the share of the plaintiff. It is also an admitted fact that the plaintiff filed O.S.No.396 of 2001 on the file of the Court of the First Additional Subordinate Judge of Ernakulam for recovery of possession of the property and in that suit, the present defendant claimed protection under section 106 of Kerala Land Reforms Act. The Sub Court after evaluation of the pleadings and the evidence found that the suit is prematured and also found that the defendant is entitled to get the protection of Section 106 of Kerala Land Reforms Act and dismissed the suit. Against that decree, the plaintiff filed A.S.No.376 of 2005 before the District Court, Ernakulam, which was made over to the 6 th Additional District Court, Ernakulam for disposal. The learned Additional District judge vacated the finding regarding protection under section 106 of Kerala Land Reforms Act holding that the defendant is not entitled to get that benefit, as the lease was of the year 1981 and the earlier lease had been surrendered and a fresh lease had been created but confirmed the finding that the suit is premature and dismissed the appeal on that ground. It is thereafter, after the expiry of the period of five years more, the plaintiff sent Ext.A4 notice requesting the defendant to vacate the premises and to pay arrears of rent at the rate of Rs.1,900/- per month from 1.4.2001 till the date of the termination of lease, namely 31.3.2006 and thereafter at the rate of Rs.30,000/- per month from 1.4.2006 and this was served on the defendant evidenced from Ext.A5 postal acknowledgment and no reply has been sent for the same. It is thereafter the present suit has been filed.

13. Section 106 of Kerala Land Reforms Act reads as follows:

# 106. Special provisions relating to leases for commercial or industrial purposes

[(1) Notwithstanding anything contained in this Act, or in any other aw, or in any contract, or in any order or decree of Court, where on any land leased far commercial or industrial purpose, the lessee has constructed buildings for such commercial or industrial purpose before the 20th May, 1967, he shall not be liable to be evicted from such land, but shall be liable to pay rent under the contract of tenancy, and such rent shall be liable to be varied every twelve years.

Explanation- For the purpose of this section, – (a) ‘lessee’ includes a legal representative or an assignee of the lesser; and (b) ‘building’ means a permanent or a temporary building and includes a shed.

(1A) The lessor or the lessee may apply to such authority as may be prescribed for varying the rent referred to in sub-section (1), and thereupon such authority may, after taking into consideration such matters as may be prescribed and after giving the lessor and the lessee an opportunity of being heard, pass such orders on the application as it deems fit.]

(2) If, between the 18th December, 1957 and the date of commencement of this Act, any decree or order of Court has been executed and any person dispossessed by delivery. Such person shall, on application before the Land Tribunal, be entitled to restoration of possession:

Provided that, before restoration, such person shall be liable to pay-

(i) the compensation paid by the landlord for any improvements in the land and, subsisting at the time of restoration;

(ii) the compensation for any improvements effected subsequent to the delivery:

Provided further that he shall not be entitled to restoration if the property has passed on to the possession of a bona fide transferee for value.

[(3) Nothing contained in sub-section (1), sub-section(1A) and sub-section (2) shall apply to lands owned or held by the Government of Kerala or a local authority.]

(Explanation.- For the purposes of this sub-section, ‘local authority’ includes the Cochin Port Trust and any University established by an Act of the Kerala State Legislature.]

14. In order to claim protection under section 106 of the Kerala Land Reforms Act, it must be proved by the tenant that the lease was prior to the coming into force of the Kerala Land Reforms Act and it was a commercial lease and during the subsistence of that lease, the tenant had constructed the buildings for commercial purpose on or before the 20th of May, 1967. This was so held in the decision reported

# Chandy Varghese v. Abdulkhader, 2003 (3) KLT 553

But in this case admittedly, though there was a lease in the year 1966 and the defendant had constructed a building for the purpose of conducting petrol pump as evidenced by Ext.A8 lease deed, it was admitted by the defendant and also proved by the plaintiff by producing Ext.A9 that a portion of the property measuring 3.36 Ares including the building constructed by the defendant was acquired by the Government and thereafter, the compensation of the building was paid to them and the compensation for the land was paid to the plaintiff. It is thereafter in the year 1981, Ext.A2 lease deed was executed after retaining 17.1 square meters of land with the plaintiff, only in respect of the balance extent of land for the purpose of conducting a petrol pump and the present buildings were constructed only thereafter.

15. In the decision reported in

# Sulaikha Beevi v. Mathew, 2001 (1) KLT 360

it was held that an implied surrender can be inferred from the conduct of parties. Further in the same decision it has been held, if it is found that it is on the basis of a new entrustment that a person is holding the property and there is no continuation of an earlier lease, then he is not entitled to get protection under section 106 of Kerala Land Reforms Act.

16. Further in the decision reported in

# Sathyanesan Punnoos v. Roberson Titus, 1993 (2) KLT 956

it has been held that lessee who constructed a building in the year 1958 and surrendered his lease hold right in 1961 and a new lease deed was executed on the same date where by the land and buildings were rented out to him, then the tenant is not entitled to get the benefit of the amended provisions of section 106 of Kerala Land Reforms Act.

17. It will be seen from the recitals in Ext.A2 that the terms of lease are different and the extent of the property leased out is also different and it was a combined lease for the building and land. It is recited in Ext.A2 as follows, “whereas the period of lease under document No.1949/1/66 cited above is to be expired in 1986 and whereas the lesser intends that the lease deed should be a composite one whereby the lease deed registered as document No.1949/1966 was superseded and cancelled by execution and registration of this deed”. Further the earlier lease though subsisting till 1986 was surrendered in view of the fact that a portion of the property with the buildings was acquired and without construction of a fresh building, the conduct of a petrol pump and service station could not be possible. It was in modification of the earlier lease, that the present lease deed was executed in the year 1981 after a portion of the property was retained by the landlord/lessor and only the balance extent was given to the defendant with effect from 1st April, 1981.

18. It is also mentioned in Ext.A2 that at the expiry of the period of lease, the lease will be automatically and without any further act of the parties here to be renewed for a further time of five years and it is also mentioned in the lease deed itself that, at the time of expiry of the lease, the tenant has to surrender possession of the property after removing the structures constructed by them. From the above recitals in the documents and on the basis of evidence, it could not be said to be a renewal of 1966 lease. The evidence discloses that there was surrender of the earlier lease and subsequently a fresh lease deed was executed and it was on that basis the present buildings had been constructed. So the construction at any rate could be possible only after 1981 and not prior to the appointed date mentioned in section 106 of the Kerala Land Reforms Act and therefore, the court below was perfectly justified in coming to the conclusion that the defendant is not entitled to get protection under section 106 of the Land Reforms Act and rightly rejected that claim on facts.

19. Then the other question to be decided is whether the finding in the earlier proceedings in respect of the question regarding protection under section 106 of the Kerala Land Reforms Act will operate as res judicata in this suit.

20. It is an admitted fact that the earlier suit, O.S.No.396 of 2001 was filed by the present plaintiff against the present defendant for the same relief of recovery of possession on the allegation of expiry of the lease granted as per Ext.A2 lease deed, which was marked as Ext.A1 in that case. In that suit also, the defendant had inter alia taken a contention that they are entitled to get protection under section 106 of the Kerala Land Reforms Act. The trial court dismissed the suit on the ground that they are entitled to get protection under section 106 of the Kerala Land Reforms Act and also on the ground that the suit was a premature one instituted before the expiry of the lease period mentioned in the agreement. The defeated plaintiff in that suit filed A.S.No.376 of 2005 before the District Court, Ernakulam which was made over to the Additional District Court, Ernakulam for disposal. Though by Ext.A3 judgment, the Additional District Judge upheld the dismissal of the suit on the ground that it is a premature one, the findings of the trial court that the defendant is entitled to get protection under section 106 of the Kerala Land Reforms Act was reversed and categorically held that they are not entitled to get the protection under section 106 of the Kerala Land Reforms Act. So, even in that suit, the question regarding the protection under section 106 of the Kerala Land Reforms Act was directly and substantially in issue and a finding on that issue was necessary for a proper disposal of the case as well. A finding had been recorded by the court below on that aspect.

21. In the decision reported in

# Sajjadanashin Sayed MD.B.E.EDR (D) by Lrs v. Musa Dadabhai Ummer and others, (2000) 3 SCC 350

the Supreme Court has held that:

“The words used in section 11 CPC are “directly and substantially in issue. If the matter was in issue directly and substantially in a prior litigation and decided against a party, then the decision would be res judicata in a subsequent proceeding. Judicial decisions have however held that if a matter was only “collaterally or incidentally” in issue and decided in an earlier proceedings, the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly and substantially in issue. The fundamental rule is that judgment is not conclusive if any matter came collaterally in question. A collateral or incidental issue is one that is ancillary to a direct and substantive issue, the former is an auxiliary issue and the latter the principal issue. The expression ”collaterally or incidentally” in issue implies that there is another matter which is “directly and substantially” in issue. As regards the tests for distinguishing whether a matter was directly in issue or collaterally or incidentally in issue, Mulla (15 th Edn, p.104) says: A matter in respect of which relief is claimed in an earlier suit can be said to be generally a matter directly and substantially” in issue but it does not mean that if the matter is one in respect of which no relief is sought it is not directly or substantially in issue. It may be or may not be. It is possible that it was “directly and substantially” in issue and it may also be possible a that it was only collaterally or incidentally in issue, depending upon the facts of the case. The question arises as to what is the test for deciding into which category a case falls? One test is that if the issue was “necessary” to be decided for adjudicating on the principal issue and was decided, it would have to be treated as “directly and substantially” in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case (Mulla, p.104). One has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue. Another principle of caution referred to by Mulla (p.105 ) is: It is not to be assumed that matters in respect of which issues have been framed are all of them directly and substantially in issue. Nor is there any special significance to be attached to the fact that a particular issue is the first in the list of issues. Which of the matters a re directly in issue and which collaterally or incidentally, must be determined on the facts of each case. A material test to be applied is whether the court considers the adjudication of the issue material and essential for its decision”.

22. In the decision reported in

# Sulochana Amma v. Narayanan Nair, (1994) 2 SCC 14

it has been held that, even in an injunction suit, if the question of title is in issue and the decree of the court based on equitable relief of injunction operates as res judicata in later suit based on title between the same parties.

23. In the same decision it has been observed that:

“Section 11 aims to prevent multiplicity of the proceedings and accords finality to an issue, which directly and substantially had arisen in the former suit between the same parties or their privies, been decided and became final, so that parties are not vexed twice over, vexatious litigation would be put to an end and the valuable time of the court is saved. It is based on public policy, as well as private justice. They would apply, therefore, to all judicial proceedings whether civil or otherwise. It equally applies to quasi-judicial proceedings of the tribunals other than the civil courts.”

24. In the decision reported in

# Khalid v. Sulekha, 1986 KLT 1113 (FB)

a Full Bench of this court considered the question as to whether the earlier suit dismissed as premature after giving findings on merit then subsequent suit if filed is barred by res judicata for the same relief in respect of the same subject matter, while answering that question, this court has held that:

“To press into service the doctrine of res judicata or estoppel by record it is enough if the party concerned shows that the parties in both the suits were the same, and are persons whose names are on the record at the time of the decision, even if a party may be a person who got intervened in the suit. Such a party has the right to file an appeal and get the judgment and decree set aside. If the final decision in any matter at issue between the parties is based by a Court on its decisions on more than one point each of which by itself would be sufficient for the ultimate decision, the decision on each of these points operate as res judicata between the parties. There are no degrees of importance of any issue, in deciding the question whether the trial of an issue, in a subsequent suit is prohibited which was directly and substantially in issue between the same parties in an earlier suit. Therefore, the present suit is barred by res judicata on account of the judgment in the earlier suit.”

25. It has been further held in the same decision that:

“What is required to be proved or established to hold that there is bar of res judicata for the subsequent suit, is that in both the suits, the title of the parties agitated is incidental, but not the identity of the actual properties involved in the two litigations.”

26. In the decision reported in

# Vithal Yeshwant Jathar v. Shikandarkhan Makhtumkhan Sardesai, AIR 1963 SC 385

a larger bench of the Supreme Court consists of four judges held that:

“Where the final decision in any matter at issue between the parties is based by a Court on its decisions on more than one point, each of which by itself would be sufficient for the ultimate decision, the decision on each of these points operates as res judicata between the parties.”

27. In the decision reported in

# Ramadhar Shrivas v. Bhagwandas, (2005) 13 SCC 1

while considering the question of res judicata under section 11 of the Code of Civil Procedure, it has been observed that:

“Court recording clear finding as to ownership right of H, predecessor in interest of appellant plaintiff, and that respondent defendant B, was neither owner of the suit property nor could he show any right of occupation of property other than as tenant of H. No decree was passed against B in the said suit. B was not challenging the finding as to ownership of plaintiff, and same attained finality. It was held that the said finding would operate as res judicata and B could not re agitate question of ownership of H in eviction proceedings later initiated by appellant plaintiff.”

28. It has been observed in the same decision after relying on several decisions of the Supreme Court on this aspect in

# Pawan Kumar Gupta v. Rochiram Nagdeo, (1999) 4 SCC 243

# P.K. Vijayan v. Kamalakshi Amma and others, (1994) 4 SCC 53

# E. Ethirajan (dead) by Lrs v. Lakshmi and Others, (2003) 10 SCC 578

# Marwari Kumhar and Others v. Bhagwanpuri Guru Ganenshpuri and another, (2000) 6 SCC 735

# Madhavkrishna and another v. Chandra Bhaga and others, (1997) 2 SCC 203

# Konda Lakshmana Bapuji v. Government of A.P and others, (2002) 3 SCC 258

and

# Most Rev.P.M.A. Metropolitan and others. v. Moran Mar Marthoma and another, 1995 Supp. 4 SCC 286

that the counsel for the appellant is right in contending that the finding as to ownership of the plaintiff had attained ‘finality’ in the earlier proceedings, so far as the ownership rights of the plaintiff are concerned, they had not been challenged by defendant Bhagwandas and hence that finding would operate as res judicata in the subsequent suit between them.

29. In view of the dictum laid down in the above decisions, it is clear that in a previous proceedings if a particular issue or matter is directly and substantially in issue between the parties and that point is also required to be decided for the purpose of proper adjudication of the case and after considering that issue if the court has entered a finding on that issue though the suit was disposed of on other technical matters, if that finding has attained finality and is not challenged by the person affected by that finding, then it will operate as res judicata against the party, who suffered the finding in a subsequent suit in respect of the same subject matter.

30. In the decision reported in

# Smt. Ganga Bai v. Vijay Kumar and others, (1974) 2 SCC 393 : 1974 KHC 468

it has been held that no appeal is maintainable as against the mere finding recorded by the trial court. In that case it has been held that:

“… there is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring a suit of civil nature and unless the suit is barred by statute one may, at one’s peril, bring a suit of one’s choice. It is no answer to a suit, howsoever frivolous the claim, that the law confers no such right to sue. A suit of its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute. Under S.96(1) of the Code of Civil Procedure, save where otherwise expressly provided by the Code or by any other law for the time being in force, an appeal lies from every decree passed by any Court exercising original jurisdiction, to the Court authorized to hear appeals from the decisions of such Court. S.100 provides for a second appeal to the High Court from an appellate decree passed by a Court subordinate to the High Court.S.104(1) provides for appeals against orders of the kind therein mentioned and ordains that save as otherwise expressly provided by the Code or by any law of the time being in force an appeal shall life “from no other orders”. Clause (i) of this section provides for an appeal against “any orders made under Rules from which an appeal is expressly allowed by rules”. O.43, R.1 of the Code, which by reasons of Cl.(i) of S.104(1) forms a part of that section, provides for appeal against orders passed under various rules referred to in Clauses (a) to (w) thereof. Finally, S.105(1) of the Code lays down that save as otherwise expressly provided, no appeal shall lie from any order made by a Court in exercise of its original or appellate jurisdiction. These provisions show that under the Code of Civil Procedure, an appeal lies only as against a decree or as against an order passed under rules from which an appeal is expressly allowed by O.43, R.1. No appeal can lie against a mere finding for the simple reason that the Code does not provide for any such appeal.”

31. The same principle has been laid down in the decision reported in

# Deva Ram and Another v. Ishwar Chand and another, (1995) 6 SCC 733 : 1995 KHC 1010

32. In the decision reported in

# Ramesh Chandra v. Shiv Charan Dass and others, AIR 1991 SC 264

the question considered was whether the finding in an earlier case operates as res judicata. It has been held that one of the test to ascertain if the party aggrieved by the finding to challenge it. If he has no right of appeal against that finding, then that will not operate as res judicata in a subsequent proceedings. So it is clear from the above dictums that a mere finding in an earlier proceedings will not operate as res judicata unless the party against whom such a finding has been entered has a right of appeal to challenge the same. It is also clear from the dictum laid down in the above decisions that a party will not get a right of appeal against a mere finding in a proceedings. An appeal is provided only against a decree under section 96(1) of the Code of Civil Procedure and against an order under section 104(1) read with Order 43 Rule 1 of Code of Civil Procedure.

33. In all the decisions where it has been held that a finding on an issue in an earlier suit will operate as res judicata if the court can pass a decree on the basis of the finding on that issue and that issue arises for consideration substantially and directly for adjudication of the rights of parties and the findings in each of the issues are independently sufficient to decide the suit and if such a finding is made and the case was decided on that basis and if the affected party did not challenge the same by filing an appeal, then that finding will operate as res judicata in a subsequent proceedings. All the decisions mentioned above are in cases where the plaintiff obtained an adverse finding and he did not challenge the same and thereafter when the same issue arose for consideration in a subsequent suit between the same parties in respect of the same subject matter, it was held that the earlier finding will operate as res judicata though the suit was dismissed on other issues also.

34. But in this case though the defendant had raised the plea that they are entitled to get protection under section 106 of the Kerala Land Reforms Act in the earlier proceedings and that was found in their favour in the trial court, the suit was dismissed as premature. Though an appeal was filed by the plaintiff in that suit, who is the present plaintiff as well and though the appellate court had reversed the finding regarding the protection given to the defendant under section 106 of the Land Reforms Act, the appellate court dismissed the appeal confirming the decree dismissing the suit on the finding that it was prematurely filed. So the appellant herein, who was the defendant in the above suit, is not entitled to challenge that finding as the suit was ultimately dismissed and he cannot have a right of appeal to challenge the same by filing an appeal against the finding alone. So in such circumstances, the court below was not justified in coming to the conclusion that the finding in the earlier suit is binding on the defendant, who is the appellant herein and it will operate as res judicata against him.

35. Further it is settled law that the question of res judicata is not a question of law but it is a question of procedure and it is a caution to prevent subsequent suit being filed on the same subject matter which has been decided finally in an earlier proceedings between the same parties or persons claiming under them. So it has to be pleaded and proved by the party claiming that benefit and the court below also has to raise an issue on the question as to whether the finding against the defendant in the earlier proceedings will operate as res judicata in the present proceedings as well. But such an issue has not been raised by the court below for the purpose of considering the question as to whether the finding in the earlier proceedings will operate as res judicata or not. So under such circumstances and also in view of the discussions above, the finding of the court below that the finding in the earlier proceedings will operate as res judicata as against the defendant in the present suit is not sustainable in law and the dictum laid down in the decision reported in

# Saroja v. Chinnusamy, 2007 (4) KLT 233 (SC)

is not as such applicable to the facts of this case and to that extent the finding of the court below is set aside.

36. But in view of the detailed discussions made by this court on the basis of the fact that the appellant is not entitled to get the benefit under section 106 of the Land Reforms Act, the court below was perfectly justified in coming to the conclusion that the appellant is not entitled to get protection under section 106 of the Act and the said finding of the court below is sustainable in law and does not call for any interference.

37. After the expiry of the lease, the plaintiff had sent a notice terminating the lease and calling upon the tenant to vacate the premises on or before 31.3.2006 along with arrears of rent at the rate of Rs.1,900/- per month from 1.4.2001 till 31.3.2006 and thereafter to pay damages for use and occupation at the rate of Rs.30,000/- per month. Though notice was served on the defendant, it was not replied by them. Further, even in Ext.A2 lease deed, it was specifically mentioned that after the expiry of the lease period, the defendant has to surrender possession of the property after removing the structures constructed by them without any objection. Once the lease has been terminated by legal notice, then the occupation will be an unauthorised occupation and the plaintiff is entitled to realize damages for use and occupation from the person in unauthorised occupation. Though in the notice, the plaintiff had claimed Rs.30,000/- per month as damages for use and occupation, the plaintiff had restricted his claim to Rs.15,000/- per mensum in the suit and claimed arrears of rent at the rate of Rs.1,900/- per month from 1.4.2001 to 31.3.2006 and from 1.4.2006 till 30.9.2007 i.e, till the date of suit as damages @ Rs.15,000/- per month and thereafter claimed damages at the same rate for use and occupation till recovery of possession.

38. Once it is found that lease has been properly terminated and the defendant is not entitled to get the protection of section 106 of the Kerala Land Reforms Act, then the plaintiff is entitled to get the relief of recovery of possession and mandatory injunction to remove the structures and surrender possession of the building together with arrears of rent and damages for use and occupation as claimed in the plaint. The court below had considered the importance of the locality and in another proceedings, which culminated in Ext.A6 judgment in respect of some of the property, this court had fixed Rs.7,000/- per month as damages for use and occupation in that case which is prior point of time of this lease. Further the defendant has no case that the amount as claimed as rent will not be fetched for that property in that area at that time. So under the circumstances, the court below was perfectly justified in fixing the sum of Rs.15,000/- per month as damages for use and occupation and rightly decreed the suit as prayed for directing the defendant to pay Rs.36,100/- towards the rent from 1.4.2001 to 31.3.2006 as liability to pay rent was not disputed and thereafter at the rate of Rs.15,000/- per month as damages for use and occupation from 1.4.2006 to 30.9.2007 to the tune of Rs.2,70,000/- with interest as mentioned in the judgment and thereafter directed the defendant to pay damages for use and occupation at the rate of Rs.15,000/- per month from the date of suit till recovery of possession. We do not find any reason to interfere with that finding of the court below on this aspect as well. So the court below was perfectly justified in decreeing the suit as prayed for and we do not find any reason to interfere with the same. The points are answered accordingly.

In the result, the appeal fails and the same is hereby dismissed. Considering the circumstances of the case, we do not find any reason to disallow costs of the appeal to the respondent. So the appeal is dismissed with costs of the respondent.

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