Abdul Rashid vs Ghulam Mohd.& Gul Mohd.& Anr.

Sethi, J.—In previous litigation between the predecessorsininterest of the parties, the petitioner herein was held to be a cosharer of the suit

property and ordered to be put into joint possession as cosharer alongwith other cosharers. As the physical possession was not handed over to the

petitioner herein, the respondents filed a new suit in the court of Sub Judge, Kishtwar, for declaration to the effect that they were the

ownersinpossession and the basis of their adverse possession alongwith the consequential relief of injunction restraining the petitioner herein from

interfering with in their possession. It was averred in the plaint that as no physical possession was delivered in the execution proceedings and they

continued to be in uninterrupted possession of the suit property till the institution of the suit, they were entitled to be declared as owners and the

petitioner was required to he restrained by the issuance of appropriate injunction from interfering with their possession. The suit was resisted on the

ground that since the controversy had been sets at rest, the suit filed being barred by the principles of resjudicata, was not maintainable. On the

pleadings of the parties, the trial court vide order dated 29.11.1986, framed the following two preliminary issues:

1) Whether the suit is hit by the principle of resjudicata? OPP

2) Whether the suit is not maintainable in the present form? O.P.D.

The trial court held that the suit was not hit by principle of rejudicata as the questions involved in the subsequent litigation ware not directly and

substantially involved in previous litigation, the suit was maintainable. It was also held that there was no material on the record to indicate is to how

the suit was rot maintainable in the form filed in the trial court. The Court thereafter framed further issues and directed the parties to lead evidence

vide the order impugned in this revision petition. It is submitted that the order of the trial court being against law and facts is not maintainable and

was liable to be quashed.

Vide court order dated 17.5.1991, this revision [petition was directed to be listed before the Division Bench as important question of law were

required to be authoritatively pronounced.

It is not denied that Habib Sheikh, father of the petitioner herein, filed a suit for declaration in (he court of Sub Judge, Kishtwar, on 20 8.1955

seeking declaration that he was entitled to half of the land mentioned in the plaint as owner. His case was that Lassa, father of the defendants, was

his real brother and they lived jointly being joint in mess, business and property. Habib claimed to be in the government service and Lassa lived at

home who managed the family affairs. The suit property was purchased jointly by the money supplied by the plaintiffs but as he was not having

agriculturist certificate, saledeed was got executed in the name of Lassa alone who possessed the requisite certificate. Lassa died some months

before the institution of the said suit and his sons refused to recognise plaintiffs title overs the suit land necessitating the filing of the suit. After a

protracted trial, the suit of Habib Sheikh was decreed on 9.9.1968. The matter whs set at rest by this Court vide judgment passed in civil second

appeal No. 88/71 decided on 28.II.1972 by upholding the decree passed by the trial court. The symbolic possession was thereafter delivered to

the decree holder on 23.12,1972 at a time when the Letters Patent Appeal against the order of the learned Single Judge was still pending in the

Court which was later disposed of on 4,3 1985.

The doctrine of resjudicata is embodied in Sec. 11 C.P.C. which has been held to be a rule of conclusiveness of the judgments as to the points

decided, in every subsequent suit between the same parties, or the parties claiming through such parties. It is aimed at avoiding superfluous

litigation and is based on the maxim of Roman jurisprudence ""interest reipublicae ut sit finis litium"" it concerns to state that there be an end to law

suits and partly on the maxim nemo debet bis vexari pro una et eadem causa i.e., no man should be waxed twice over the same cause. It was held

in Shiv Prashad Singh v. Ramanandan Prashad Singh (AIR 1916 PC 78) that but for this rule there would be no end to litigation and there shall be

no security for any person. In that way rights of the persons would be involved in endless continuation and great injustice done under the cover of

law. It was again held in AIR 1925 PC 34 that where there has been an executable judgment between the parties, the rule of resjudicata will

prevent a fresh suit between them for the relief. The bar is not merely confined to the judgments but extends to all the facts involved in it as

necessary steps or groundwork for the decision because a judgment operates as a bar as regards all findings which are essential to sustain the

judgment. It is also not disputed that Sec. 11 C, P. C. is not exhaustive of the general doctrine of resjudicata as principle of conclusiveness of the

judgment is wider than the terms of the section. Where circumstances other than provided for in the section exist, the principle underlying the rule

of resjudicata may be invoked in a proper case without recourse to the ""provisions of the section. In order to attract the provisions of Sec. 11 C.

P. C. the conditions necessarily required to be proved are : (i) that the matter directly and substantially in issue in the subsequent suit had been

directly and substantially in issue in the former suit; (ii) the former suit must have been between the same parties or between the parties under

whom they or any one of them claims, (iii) the parties to the litigation must have been litigating under the same title in the former suit, and (iv) the

court trying the former suit must have been a court competent to try the subsequent suit or the suit in which such issue is subsequently raised and

such matter in issue in the subsequent suit must have been heard and finally decided in the first suit

In the instant case the question regarding the suit property being jointly owned by the parties was admittedly directly and substantially in issue in

the earlier suit which is required to be adjudicated in the latter suit. The former suit was between the parties under whom the parties in the present

litigation claim their title and the parties are definitely litigating under the same title as they had done in the former suit. The Court trying the former

suit was competent, and, in fact, had entertained and adjudicated the subsequent suit. It is also net denied that the issue regarding the properly

being jointly owned and possessed was heard and finally decided in the first suit. It, therefore, transpires that all the conditions mentioned in Sec.

11 or which could be the basis to raise a plea of resjudicata were in existance which appear to have not been taken note of by the court below

vide the judgment impugned in this revision petition.

Learned counsel for the respondents, however, submitted that the present suit was not barred as the plaintiff therein had approached the Court

on a new plea of adverse possession on the ground that as the decreeholder was not put in actual physical possession the plaintiff in the suit had

acquired a right to remain in possession on the ground of adverse possession, It is submitted that as despite the execution of the decree the

judgmentdebtors remained in possession, their possession become hostile and adverse to the petitioner conferring a right upon them to remain is

possession thereby giving them a fresh cause of action to file the suit.

7) Under Order XXI rule 35 subrule (2) CPC the decree for joint possession of immovable property is executed by affixing a copy of the warrant

in some conspicuous place on the property and proclaiming by beat of drum or other customary mode at some convenient place the substance of

the decree. In Tara Singh v. Gurdayal Singh (AIR 1959 Punjab 518) it was held that delivery of possession under Order XX[ rule 35 CPC in

execution of a decree to the decreeholder as against the judgmentdebtor is as effective as actual physical possession particularly under the

circumstances where actual physical possession cannot possibly be given. In that case the decreeholder in execution of his decree for preemption

of I/3rd share in certain vacant land obtained by symbolic possession and subsequently when the decreeholder tried to plough the land hi was

obstructed by the judgment debtors resulting in the initiation of litigation under Sec. 145 Cr. P. C. It was held that as a result of symbolic

possession the decree holder must in law be deemed to be in actual possession of the land and that state of affair must be deemed to have

continued thereafter unless the judgment debtors could show that by some definite overt act they regained the possession from the decreeholder

and the judgmentdebtors in that case were held not to be in actual possession of the property. Similarly in ATR 1917 PC P7 it was held that where

subsequent to the delivery of possession the judgmentdebtor dispossesses the decreeholder and remains in possession would be adverse to the

decree holder only from the date of the dispossession. It therefore, the contending party has to plead and prove the specific ouster of the

decreeholder from the land in dispute subsequent to the delivery of symbolic possession under Order XXI rule 35 (2) C.P.C. In the instant case

neither any such plea was raised nor proved.

It cannot be disputed that the possession and adverse possession are not the same thing. Possession implies dominance and control and

consciousness in the mind of the person having a dominance and control over the object that be has and can exercise it. Mere occupation only

implies bare use of the land without any right to retain it The possession to be adverse possession must be hostile possession against the other

party, that is, a possession which is expressly or impliedly in denial of the title of the true owner and the person preferring such a claim should be

proved to have rot acknowledged the other party's right over the land. The person who basis his title on adverse possession is required to show by

clear and unequivocal terms that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed. The

animus of the person claiming adverse possession is the most crucial factor to determine its nature. Possession to be adverse must not only be

continuous but it should be feasible, exclusive and hostile. Adverse possession is commenced in wrong and is aimed against right. It should be

hostile under a claim or colour of title, actual, open notorious, exclusive and continuous for the required period of time thereby giving an

indefeasible right of possession or ownership to the possessor by operation of the limitation of actions. It has been consistently held by the Courts

in the country that adverse possession means possession by a person holding the land on his own behalf or on behalf of some person other than the

owner, the true owner having a right to immediate possession (Bejoy Chandra v. Kally PrasannoILR 4 Cal. 327). The fundamental principle of law

is that there can be no adverse possession without animus prescribed i.e. there can be no acquisitive prescription without the intent to acquire

property of which the other is the owner. Possession by itself in not enough to give a title. The real owner should be proved to have been

discontinued from possession and somebody else in his place should have taken possession adversely to him. In order to prove adverse

possession, the party claiming such possession is required to prove : (a) that such possession was adequate in publicity, in continuity and in

existent; (b) the possession ''should be over and without any attempt at concealment affording opportunity to the person against whom it is required

to be preferred to exercise due vigilance to be aware as to what was happening; (c) it is however, not necessary to establish adverse possession

proof of acts of possession should cover every moment of the requisite period. Such facts may be continuous though actually acts of possession

are at considerable intervals. A series of isolated acts of tresspass with no continuity of possession would fall short of the requisite and if, in fact,

there has been interruption, possession during such interruptions shall be deemed to be with the person having lawful right; arid (d) title by adverse

.possession is limited to what has been actual possession is limited to what has been actual possession by the tresspasser. In Taji Bai v. Hussain

Khan (AIR 1987 MP 219) it was held that principle of Jaw if frequently established that a person who basis his title of adverse (possession, must

show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property

claimed. In S.M. Karim v. Mst. Bibi Sakina AIR 1964 SC 1254), it was observed:

Adverse Possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession become

adverse so that the starting point of limitation against the party affected can be found.

In Akbar Ali vs Abeul Aziz (AIR 1920) Bombay 61) it was held that it would require very strong evidence on the part of the loosing party to

acquire a fresh title by adverse possession against the decree of a court and be must act in such a way that the parties interested could have no

doubt whatever with regard to his modus nor that they might be enabled to take proper steps to stop time from running.

Reliance of Mr. Kotwal, learned counsel for the respondents on AIR 1945 Madras 485, AIR 1928 All 412 and AIR 1966 SC 470, Is

misplaced inasmuch as the point of law as discussed hereinabove was never in issue in those cases. The question regarding the applicability of

Article 142 or Article 144 of the Limitation Act is not the point to be determined or adjudicated1 in this litigation because the decreeholder in the

earlier suit has not claimed possession on the basis of the delivery of symbolic possession. In the instant case the plaintiff had come with a specific

plea of adverse possession which was covered by Article J 42 of the Limitation Act and the applicability of Article 144 was neither agitated nor

adjudicated.

In view of the position of law as discussed hereinabove it is hold that the court below did not properly decide issue No. 1 vide the judgment

impugned in this revision petition. The suit of the plaintiff respondents filed in the trial court on 7ll1985 out of which this revision petition has arisen,

was admittedly barred by the principles of res judicata. The finding of the trial court on this issue is set aside by holding that the suit filed by the

respondents was hit by the principles of res judieata and liable to be dismissed.

Accordingly this revision petition is accepted and while setting aside the judgment impugned in this revision petition the suit filed by the

respondents is held to be barred by the principles of res judicata which is accordingly dismissed with costs.