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Judgment
A. Selvam, J.—The undaunted and unrelented plaintiffs as appellants have challenged the judgment and decree dated 29/3/1996 passed in Appeal Suit No. 18 of 1995 by The Sub-Court, Nagercoil, wherein the judgment and decree passed in Original Suit No. 883 of 1998 by The Principal District Munsif Court, Nagercoil are confirmed.
The appellants herein as plaintiffs have instituted the Original Suit No. 883 of 1988 on the file of the Principal District Munsif Court, Nagercoil for the reliefs of declaration and perpectual injunction, wherein the present respondents have been shown as the defendants.
The material averments made in the plaint can be stated like thus:
The suit A schedule property consist of a small portion of land and in which a well is in existence. The suit A schedule property situates on the north western corner of the property belonging to the first plaintiff. The property of the second plaintiff lies immediately on the southern side of the property of the first plaintiff. The suit B schedule property is originally belonged to one Fernando and its original survey number is 2260. On the north of the suit B schedule property, original survey number 2261 is situate. The original owner of the suit B schedule property gifted its northern half share to his daughter Mary Bowling and he also gifted its southern half share to his younger daughter by name Mary Grace. In the gift deeds, it has been mentioned that the lands found in the gift deeds are getting water from the suit well. The plaintiffs and their predecessors in title have been using the water of the suit well. During resurvey, it is found that the suit A schedule property is comprised in Survey number 2261 and subsequently, the defendants herein as plaintiffs have instituted the Original Suit No. 333 of 1970 on the file of the District Munsif Court, Nagercoil, wherein the present plaintiffs have been shown as the defendants and the said suit has been decreed and both the first appeal and second appeal preferred by the defendants therein have also been dismissed. Now, the plaintiffs are having the right of user by prescription. Since the right of the plaintiffs have been denied by the defendants, the present suit has been filed for the reliefs of declaration and perpectual injunction.
The material averments made in the written statement filed by the defendants can be stated like thus:
The suit A schedule property is the absolute property of the defendants. The plaintiffs are not having any semblance of right over the same. During resurvey, the properties have been properly surveyed. The property of the defendants is situate two feet lower in level than the property of the plaintiffs. Since the present plaintiffs have claimed right over the well mentioned in the plaint, the defendants herein have filed the original suit No. 333 of 1975 against the present plaintiffs and the said suit has been decreed and the appeals filed thereon have also been dismissed and therefore, the decision given in Original Suit No. 333 of 1975 operates as res judicata to the present suit. There is no merit in the suit and the same deserves dismissal.
On the basis of the rival pleadings raised by either party, the trial Court has framed necessary issues and after poring the entire contra evidence available on record has dismissed the suit. The judgment and decree passed by the trial Court have been challenged in Appeal Suit No. 18 of 1995. The First Appellate Court has also after having threadbare discussion dismissed the appeal, whereunder the judgment and decree passed by the trial Court have been confirmed.
The only substantial question of law that has been raised at the time of admission is
Whether the present suit is hit by the principle of res judicata in view of the decision rendered in Original Suit No. 333 of 1975 filed by the respondents herein.?
The learned Counsel appearing for the appellants has emphatically contended that the suit well has been shown as A schedule property and the plaintiffs and their predecessors in title have had taken water from the suit well from time immemorial and thereby the plaintiffs are having title by prescription and only on that basis, the present suit has been instituted. But the trial Court without considering the contentions urged on the side of the plaintiffs as well as Commissioner''s report and plan has dismissed the suit and the First Appellate Court has not properly appreciated the evidence adduced on the side of the plaintiffs and altogether, the concurrent findings given by the Courts below are totally erroneous and therefore, the same are liable to be reversed.
The learned Counsel appearing for the respondents has laconically contended that the present defendants as plaintiffs has instituted the Original Suit No. 333 of 1975 on the file of the Principal District Munsif Court, Nagercoil for the reliefs of declaration and perpectual injunction in respect of the suit well wherein the present plaintiffs have been shown as the defendants and the trial Court has decreed the suit as prayed for and against which the defendants therein have preferred first appeal and second appeal and they have also been dismissed and therefore, the decision rendered in Original Suit No. 333 of 1975 has become final and now, the plaintiffs have claimed the same right as claimed in Original Suit No. 333 of 1975 and therefore, the decision rendered in Original Suit No. 333 of 1975 operates as res judicata to the present suit and the Courts below after having threadbare discussion have rightly found that the present suit is barred by res judicata and there is no attractive ground to make interference with the concurrent findings given by the Courts below and altogether, the present appeal deserves dismissal.
In support of his contention, he has drawn the attention of the Court to the decision reported in Amarendra Komalam and Another Vs. Usha Sinha and Another, , wherein the Honourable Apex Court has held that
Issue of fact determined finally between the parties by a Court of competent jurisdiction operates as res judicata when the same issue comes directly in question in subsequent proceedings between the same parties.
With these legal backdrops, the Court has to analyse the present second appeal. It is an admitted fact that the Courts below have dismissed the suit mainly on the ground of res judicata. The substantial question of law has also been framed to that effect. It is also equally an admitted fact that in the present suit, the plaintiffs have contended that they are taking water from the suit well from time immemorial and thereby they are having the right of prescription. The judgment rendered in Original Suit No. 333 of 1975 by the trial Court has been marked as Ex.B.1. It is not an adulation to say that the trial Court in Original Suit No. 333 of 1975 has elaborately dealt with the rival contentions raised by either party. The trial Court has clearly stated that D.W.1 admits that he has never taken water from the suit well by means of any shadoof. The present second plaintiff has been shown as the first defendant in Original Suit No. 333 of 1975. In the said suit, he has been examined as D.W.1. He has clearly admitted in his evidence that he has never taken water from the suit well by means of any shadoof. Therefore, the clear admission made by the second plaintiff in Original Suit No. 333 of 1975 has debilitated the entire contentions raised in the present suit. In view of the clear admission made by the second plaintiff in Original Suit No. 333 of 1975, the Court can safely come to a conclusion that the plaintiffs have never taken water from the suit well so as to irrigate their lands. Under the said circumstances, the right of prescription claimed by them is totally false.
Even assuming without conceding that the plaintiffs are having the right of prescription with regard to the suit well is concerned, the Court has to find out as to whether the decision rendered in Original Suit No. 333 of 1975 operates as res judicata. The respondents herein as plaintiffs have instituted the said suit for the reliefs of declaration, perpectual injunction etc., wherein the present plaintiffs have been shown as the defendants. They have filed a detailed written statement. But nowhere it is averred that the defendants therein are having the right of prescription in respect of the suit well.
At this juncture, a nice legal question arises as to whether any absence of defence to be taken in the earlier suit would operate as res judicata in the subsequent suit. To clinch the above legal aspect, it would be more useful to look into Section 11 Explanation 4 of the Code of Civil Procedure.
Section 11 of the said Code reads as follows:
No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanation 4 reads as follows:
Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
From the close reading of the provision of Section 11 of the said Code as well as Explanation 4 therein, the Court can easily discern the following legal aspects.
a. The matter which might and ought to have been made a ground of attack or defence in the former suit, but which has not been done so by any of the parties shall also be deemed to have been a matter directly and substantial issue in such suit and the rules of res judicata will equally apply to it.
b. Such matter is regarded as having been constructively in issue and since the parties had an opportunity of putting it forwarded, it is considered as having been actually controverted and decided.
c. The principle of constructive res judicata applies in subsequent stages of the same proceeding.
In short, if a party to a suit fails to raise a matter which might and ought to have been made a ground of attack or defence in the former suit shall also be deemed to have been a matter directly and substantially in such suit and the principle of constructive res judicata applies in the subsequent proceedings.
In the instant case, as animadverted to earlier, the present plaintiffs have not raised the plea of prescription in the suit filed in Original Suit No. 333 of 1975. But as per Explanation 4 of Section 11 of the Code of Civil Procedure, the plaintiffs herein ought to have taken the same in the said suit. But they have failed to do it. Inspite of their failure, it shall be deemed that such plea is constructively in issue in Original Suit No. 333 of 1975 and therefore, the present suit is clearly barred by constructive res judicata. Since the present suit is clearly barred by constructive res judicata, it is needless to say that the entire argument advanced by the learned Counsel appearing for the appellants is sans merit and whereas the argument advanced by the learned Counsel appearing for the respondents is really having attractive force.
In fine, this Second Appeal fails and is dismissed with costs. The judgment and decree passed in Original Suit No. 883 of 1998 by The Principal District Munsif Court, Nagercoil and upheld in Appeal Suit No. 18 of 1995 by The Sub-Court, Nagercoil are confirmed.