GOVINDAMMAL (DEAD) BY LRS. AND ORS. versus VAIDIYANATHAN AND ORS.

[2018] 11 S.C.R.

AGOVINDAMMAL (DEAD) BY LRS. AND ORS.

VAIDIYANATHAN AND ORS.

(Civil Appeal No. 5276 of 2008)

OCTOBER 23, 2018

B[N. V. RAMANA AND MOHAN M. SHANTANAGOUDAR, JJ.]Suit:

Suit for declaration of title and permanent injunction forrestraining the defendants from entering ‘A Schedule’ property(which is 50% of ‘B Schedule’ property) – In the alternative partitionCof half share in ‘B Schedule’ property was sought – ‘B Schedule’property was owned by two brothers – Partition of ‘B Schedule’property done in the year 1912 – As per partition, 50% of the ‘BSchedule’ property i.e. ‘A Schedule’ property came to the share ofpredecessors of the plaintiffs – The other 50% share went to theDother brother, which was later sold in Court auction to predecessor-in-interest of the defendants – Plea of defendants that theirpredecessor-in-interest had purchased the entire ‘B Schedule’property in the Court auction; and that defendants’ title was alreadydeclared in two suits filed by temple and school against thedefendants (wherein plaintiffs were also made party as defendants)Eand in the cross-suit filed by the defendants against the School –Trial Court decreed the suit and granted the alternative relief ofpartition – In appeal, order of trial court was reversed by SingleJudge of High Court – Division Bench of High Court decreed thesuit – On appeal, held: It is not disputed that partition of ‘B Schedule’Fproperty took place through registered deed between families oftwo brothers – 50% share was inherited by plaintiffs – The 50%share of other brother was put in court auction which was purchasedby father of defendant – What could be sold in auction was only50% of ‘B Schedule’ property and not the share of plaintiffs i.e. ‘ASchedule’ property – The suits by and against the School and byGthe temple did not decide the title of defendants qua the plaintiffsas the question of inter se title between them was neither in issuenor was required to be decided in those suits – Documents on recorddo not show exclusive possession of either of the parties – Plaintiffshave satisfactorily proved that they are the owners of the ‘A Schedule’Hproperty.

Code of Civil Procedure, 1908:

s.11 – Res judicata – Applicability of – Between co-defendants – Held: For applying the principle of res judicata betweenco-defendants, there must be conflict of interest between thedefendants; it must be necessary to decide the conflict in order togive the relief to plaintiff; and the question between the defendantsmust have been finally decided – In the facts of the present case,principle of res judicata is not applicable.

Evidence:

Admission – Evidentiary value – Held: Admission is the bestpiece of evidence – However, admission can always be explained,unless such admission gives rise to the principle of estoppel –Estoppel.

Doctrine:

Doctrine of caveat emptor – Applicability of.

Dismissing the appeal, the Court

HELD: 1.1 It is not in dispute that the entire property of3.18 acres (now reduced to 2.72 acres) was owned by two brothers‘P’ and ‘C’. It is also not in dispute that partition took placebetween the families of the two brothers through registeredpartition under which each of them got 50% of the property whichultimately amounted to 1.36 acres each. 50% of the entireproperty had fallen to the share of the sons of ‘P’ and theremaining 50% remained with ‘C’. Plaintiffs have inherited 50%of the property, i.e., to the extent of 1.36 acres from ‘P’. It seems‘C’ fell into debt and his property in question was brought to salethrough court auction. Father of the defendant was the purchaserin this court auction. Thus, what could be sold in the court auctionwas only 50% of 2.72 acres which was held by ‘C’ i.e. 1.36 acres.The remaining 50% of the property (i.e. ‘A’ Schedule) whichvested with the predecessor of plaintiffs could not be sold in thecourt auction. [Para 5] [1101-D-E, F-G; 1102-A-B]1.2 In absence of the judgment passed in suit whichultimately ended in court sale, it cannot be said as to whether theentire property was the subject matter of the court sale or not.Since ‘C’ was the judgment debtor, at the most, only his share inthe property could be sold and it is not open for the purchaser to

Acontend that he purchased the entire property though only 50%of the property belonged to the judgment debtor. The purchasercan not get higher right, title or interest in the property thanwhat vested with the seller. Ultimately the purchaser takes therisk, if he purchases the property which does not belong to thejudgment debtor. The purchaser at an auction sale takes theBproperty subject to all the defects of title, and the doctrine ofcaveat emptor (let the purchaser beware) applies to such apurchaser. Therefore, even assuming that the court auction salewas held in respect of the entire property, it cannot be said thatsuch sale was valid to the entire extent. At the most, it can beCsaid that it was valid to the extent of the property which wasowned by the judgment debtor i.e. 1.36 out of 2.72 acres. Theremaining 50%, i.e., schedule ‘A’ property was owned by thepredecessor of the plaintiffs. [Para 5] [1102-C-E]

1.3 Present suit is not mere suit for partition. PrimarilyDit is suit for declaration of the plaintiffs’ title to the suit property,i.e., ‘A schedule’ property and for permanent injunction restrainingthe defendants from entering the possession of ‘A schedule’property, which is nothing but 50% of the entire ‘B Schedule’property which fell to the share of predecessor of plaintiffs.Alternatively, it was prayed by the plaintiffs that if the plaintiffsEand defendant are found to be in joint possession, they be grantedthe relief of partition and separate possession to the plaintiffs’half share in ‘B schedule’ property. ‘B schedule’ propertymeasures 2.72 acres in its entirety, whereas ‘A schedule’ propertyis 50% of ‘B schedule’ property, measuring 1.36 acres, whichFfell to the share of predecessor of plaintiffs in the partition of1912. Since the partition had taken place in 1912 and as theplaintiffs inherited the property from their predecessor, they areentitled to 50% of the share in ‘B schedule’ property. The DivisionBench has rightly held that the plaintiffs are entitled to ‘ASchedule’ property, which is the half share allotted to their branchGin the partition of 1912, out of ‘B Schedule’ property. Thus, thequestion of maintainability raised by the defendant fails. [Para 6][1102-F-H; 1103-A-B]

1.4 The plaintiffs need not question the auction sale whichwas conducted in 1933 inasmuch as, firstly, they are not partiesHto those proceedings including the execution proceedings and

court auction. Secondly, by virtue of auction sale, the purchaserwould get only the share vested with ‘C’ inasmuch as he alonewas the judgment debtor. The property which is not owned bythe judgment debtor could not be sold at all and therefore, evenassuming that the sale certificate is wrongly issued in respect ofthe entire property, the same does not bind the plaintiffs inasmuchthey continued to be the owner of 50% of the whole of theproperty. [Para 7] [1103-C-D]

2.1It is true that under Section 11 of the CPC, when thematter has been directly or substantially in issue in former suitbetween the same parties or between parties under whom theyor any of them claim, litigating under the same title, the decreein the former suit would operate as res judicata between theplaintiff and the defendant or as between the co-plaintiffs or co-defendants. If plaintiff cannot get his claimed relief without tryingand deciding case between the co-defendants, the court will tryand decide the case in its entirety including the conflict of interestbetween the co-defendants and the co-defendants will be boundby the decree. But if the relief given to the plaintiff does notrequire or involve decision of any case between co-defendants,the co-defendants will not be bound as between each other. [Para12] [1106-F-H; 1107-A]

2.2 The requisite conditions to apply the principle of resjudicata as between co-defendants are that (a) there must beconflict of interest between the defendants concerned, (b) it mustbe necessary to decide this conflict in order to give the plaintiffthe relief he claims and (c) the question between the defendantsmust have been finally decided. All the three requisite conditionsare absent in the present matter. The father of the defendantwere colluding in the suits filed by Temple and School. Both ofthem unitedly opposed those suits. In view of the same, theprinciples of res judicata would not apply. [Para 9] [1104-C-E]

2.3In the suit filed by the temple against the father of thedefendant, the father of the plaintiffs was also arrayed as defendantNo. 2. Even in the suit filed by the school, the defendants therein,i.e. father of the plaintiffs and father of the defendant jointly pleadedthat the school was not the owner of the property and that thedefendants were the owners. Both the suits filed by the temple

Aand the school came to be dismissed. From the facts and thepleadings as well as the evidence recorded in the said suits, it isamply clear that there was no dispute inter se between thedefendants. Since the question of inter se title between thedefendant’s father and the plaintiffs’ father was not in issue andwas also not required to be decided in the disputes then raised,Bobviously, the doctrine of res judicata cannot be applied betweensuch co-defendants. [Para 8] [1103-F-H; 1104-B]

Mt. Munni vs. Tirloki Nath AIR 1931 PC 114; SyedMohammad Saadat Ali Khan vs. Mirza Wiquar Ali Begand others AIR (30) 1943 Privy Council 115; ChanduCLal vs. Khalilur Rahaman AIR (37) 1950 Privy Council17; Mahboob Sahab vs. Syed Ismail and others (1995)3 SCC 693; Syed. Mohd. Saadat Ali Khan vs. MirzaWiquar Ali Beg AIR 1943 PC 115; ShashibushanPrasad Mishra vs. Babuji Rai AIR 1970 SC 809; IftikharDAhmed vs. Syed Meharban Ali, (1974) 2 SCC 151 :[1974] 3 SCR 464 – relied on.

3. It is no doubt true that an admission is the best piece ofevidence. However, an admission can always be explained, unlesssuch an admission gives rise to the principle of estoppel. TheEprinciple of estoppel could have arisen if the father of thedefendant had acted to his detriment on the basis of therepresentation made by the plaintiffs’ father as the basicrequirement for attracting the principle of estoppel, is that theperson to whom the representation has been made must haveacted on the basis of such representation, and particularly to hisFown detriment. In the present case, the father of the defendantknew about the correct position on facts and he very well knewthat he was the owner to the extent of 50% of the property only,and as he did not act to his detriment, the question of estoppeldoes not arise. [Para 13] [1107-E-G]

4. The Division Bench of High Court has rightly negatedthe contention of the defendant relating to adverse possession.From the evidence on record, the trial court and the DivisionBench of the High Court came to the conclusion that the defendanthad failed to prove that he and his predecessor-in-interest hadHpossession over the entire property to the exclusion of the

plaintiffs and their predecessor. No material is found on recordwhich emphatically discloses that the physical delivery ofpossession of the property was given to the auction purchaser byevicting or in exclusion of all the persons including the plaintiffs’father and the plaintiffs. In the absence of such material, the trialcourt and the Division Bench have rightly concluded that therewas symbolic delivery of possession in favour of the auctionpurchaser. However, the subsequent documents show jointpossession of the plaintiffs and the defendant. Even now thenames of both the parties are found in the revenue records. Thedocuments do not show exclusive possession of either of theparties, but would indicate that they are in joint possession. Therecords and certain other material on record would negative thecontention of the defendant relating to adverse possession. [Para14] [1108-B-F]

Case Law Reference

AIR 1931 PC 114relied onPara 9AIR (30) 1943 Privy Council 115relied onPara 10AIR (37) 1950 Privy Council 17relied onPara 11(1995) 3 SCC 693relied onPara 12AIR 1943 PC 115relied onPara 12AIR 1970 SC 809relied onPara 12[1974] 3 SCR 464relied onPara 12

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5276of 2008

From the Judgment and Order dated 29.01.2007 of the HighCourt of Judicature at Madras in L.P.A. No. 70 of 2002.

Ms. V. Mohana, Sr. Adv., V. Prabhakar, Mrs. Revathy Raghavan,Ms. Jyoti Prasher, N. J. Ramchandar, R. Reghunath, Sriram P., SarathS. Janardanan, Kashvi Dutta, K. M. Vignesh Ram, Vijay Kumar, Advs.for the appearing parties.

The Judgment of the Court was delivered by

MOHAN M. SHANTANAGOUDAR, J. 1. The legalrepresentatives of the original defendant in O.S No.45/85 on the file ofthe Subordinate Judge, Cuddalore are the appellants before this Court.For the sake of convenience, the parties are referred by their status

Abefore the Trial Court.

2. The suit was filed by the respondents herein, seeking adeclaration that ‘A schedule’ property (as described in the plaint) belongsto them or in the alternative for partition of half share in ‘B schedule’property (as described in the plaint) of which ‘A schedule’ is part.BAccording to the plaintiffs (respondents herein), the properties originallybelonged to two brothers namely, Pazanivelu Mudaliar and Chokalingam;Pazanivelu Mudaliar had two sons, namely, Narayanaswamy Mudaliarand Manickam. Narayanaswamy had son named GnanasambandamMudaliar. The plaintiffs are the grandsons of Narayanaswamy being thesons of Gnanasambandam. On 21.7.1912, partition took place betweenCthe branches of Pazanivelu and Chokalingam, and the same was signedby Narayanaswamy (since Pazanivelu had expired by then) andChokalingam. In the said partition, ‘A schedule’ propertywas allotted toNarayanaswamy and Manickam (who was then minor), while theremaining 50% of the property left in ‘B schedule’ was allotted toDChokalingam. It is relevant to note here itself that the suit property totallymeasured 3.18 acres at the time of partition in 1912, which subsequentlygot reduced to 2.72 acres in view of natural calamities, sale of certainportions and resettlement etc. Thus, the share of each branch was reducedto 1.36 acres each. The property consisted of Survey No. 67.Narayanaswamy and Manickam being the sons of Pazanivelu MudaliarEpartitioned the property allotted to the branch of their father in such amanner so as to allot the entire ‘A Schedule’ property to Manickam, on5.4.1933, as per Exhibit A-39. The said property allotted in favour ofManickam was sold by him to one Appavu Mudaliar on 11.9.1940 asper Exhibit A-2. On 26.2.1942, the property purchased by AppavuFMudaliarwas in turn sold in favour of Sambandam Mudaliar. On 9.2.1950,the property purchased by Sambandam Mudaliar was sold toNarayanaswamy Mudaliar as per Exhibit A-3. After the death ofNarayanaswamy Mudaliar in the year 1965, the plaintiffs being thegrandsons of Narayanaswamy Mudaliar inherited the whole ‘A schedule’property.G

Meanwhile, Chokalingam’s half share was sold in court auctionon 21.12.1933 and was purchased by the original defendant’s father.There are no records to show that there was delivery of possessionpursuant to the court auction sale; at any rate, the court sale could notconfer more than the right, title and interest of the judgment debtor,Hnamely Chokalingam’s half interest, which is 1.36 acres out of 2.72 acres

recorded in the resettlement. Unfortunately, the entire ‘B Schedule’property which was partitioned in 1912 was never demarcated inasmuchas the same was always used as house site. Since the resettlementproceedings in 1976, this property comprises 3 pattas numbers. Theplaintiffs’ father had also been paying house tax. The defendant had noright in ‘A schedule’ property. The defendant’s father and consequentlythe defendant did not have any right over the property in excess ofChokalingam’s half share, i.e., 1.36 acres. On 5.11.1978, in the partitionin the family of the plaintiffs and their father, the ‘A Schedule’ propertywas allotted to Plaintiff No.2 as per Exhibit A-40. Since the defendantattempted to trespass into the south western portion of the suit property(which falls under ‘A Schedule’) and prevented the plaintiffs fromenjoying the same, the suit came to be filed.The case of the defendant is that his father purchased the entireextent of Survey Number 67, i.e., 2.72 acres in court auction (inexecution of the decree in O.S.No. 20 of 1918) on 21.12.1933, whichwas confirmed on 29.9.1934, and possession was delivered to him; afterhis father’s death in 1940, the defendant continued to be in possession.In the year 1975, Shri Puthumariamman Temple, Kurinjipadi filed O.S.No. 66 of 1975 against the defendant and Gnanasambandam Mudaliar(the father of the plaintiffs) in respect of the said property. The said suitcame to be dismissed, holding that the temple had no right to the propertyand that the defendant and his father were entitled to the same. Theappeal filed by the temple also came to be dismissed. Thus, the title ofthe defendant and his father was upheld in the litigation wherein thefather of the plaintiffs was co-defendant along with the defendant asstated above. Subsequently, the SKV High School filed O.S. No. 1289/1974 for declaration of its title over the property, claiming that it had gottitle over the entire property. The defendant filed O.S. No. 1290/1974against the SKV High School. The father of the plaintiffs was one of thedefendants in O.S. No.1289/1974 filed by the school whereas he wasnot made party by the defendant in O.S. No.1290/1974. After joint trialin both the suits, the suit filed by the present defendant was decreeddeclaring his title over the suit property, and the suit filed by the schoolwas dismissed. Such judgment of the Trial Court was confirmed in appeal.The defendant denied the validity of the subsequent sale deeds dated11.9.1940 and 9.2.1950 in his written statement. Even the later partitiondated 5.11.1978 was attacked as fraudulent and collusive transaction.The defendant claimed to be in exclusive possession of the entire property

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Afrom the date of the court auction, i.e., from 1933 continuously, and thathe had acquired right by adverse possession. It was also pleaded by thedefendant that the defendant’s title has already been declared twice bythe Civil Court as mentioned supra and therefore, the present suit isbarred by the principles of res judicata. The claim of joint possessionby the plaintiffs was denied by the defendant.B

3. On full-fledged trial, the Trial Court decreed the suit andgranted the alternative relief of partition. In the first appeal filed by thedefendant, the learned Single Judge reversed the judgment of the TrialCourt and dismissed the suit. The Letters Patent Appeal filed by theplaintiffs was allowed by the impugned judgment and consequently theCsuit came to be decreed by the Division Bench of the High Court.

4. Shri V. Prabhakar, appearing on behalf of the appellants/LRsof the defendant submitted that the suit for partition is not maintainableinasmuch as even according to the plaintiffs, partition had taken placeway back in the year 1912 between the branches of their ancestorDPazanivelu Mudaliar and his brother Chokalingam. The auction saleconducted by the court in the year 1933 remained unquestioned by theplaintiffs and their predecessors; since the entire property was sold inthe auction sale, the defendant being the purchaser of the property wasentitled to the entire property. It was submitted that in the earlier litigationsEfiled by the temple and the school in respect of the entire property, thefather of the plaintiffs was co-defendant along with the father of thedefendant and had pleaded or given evidence to the effect that the entireproperty was purchased by the father of the defendant by way of courtauction, and that the father of the defendant was in possession as theowner of the same. Such disputes were decided in favour of the fatherFof the defendant, upholding his title, and therefore by operation of theprinciples of res judicata as well as estoppel, it could be said that thedefendant and his father had the right to own the property andconsequently, the plaintiffs did not have any right over ‘A Schedule’property. It was also contended that the defendant and his father hadGremained in uninterrupted possession and had been asserting the rightconsistently and openly from 1933 onwards, and therefore it could besafely said that the defendant had perfected his title by virtue of adversepossession.

Per contra, Smt. V. Mohana, learned Senior Advocate, appearingHon behalf of the respondents/plaintiffs submitted that the question of any

conflict regarding inter se title between the plaintiffs’ father and thedefendant’s father had not been in issue in any of the earlier litigationsand, therefore, there was no question of attracting the principles of resjudicata with respect to the plaintiffs’ claim. Similarly, the admission ofthe plaintiffs’ father regarding the right of the defendant’s father couldnot operate as an estoppel as it could not be said that the defendant andhis father had acted to the detriment of their interest on the basis of anyadmission of the plaintiffs’ father; even otherwise, such admission couldbe explained satisfactorily. Since the partition between the branches ofthe two brothers Pazanivelu and Chokalingam which occurred in theyear 1912 through registered partition deed was not in dispute, 50% ofthe share vested with the legal heirs of Pazanivelu Mudaliar, i.e., theplaintiffs. It was for the defendant to plead and prove that he hadremained in exclusive possession in respect of such 50% of the propertyto the exclusion of the plaintiffs, adverse to the interest of the plaintiffsfor the requisite period; otherwise the question of acquiring right byadverse possession would not arise.5. It is not in dispute that the entire property of 3.18 acres (nowreduced to 2.72 acres) was owned by two brothers, Pazanivelu andChokalingam. It is also not in dispute that partition took place betweenthe families of the two brothers i.e., Chokalingam and his brother’s sonnamely Narayanaswamy Mudaliar on 21.7.1912 (since Pazanivelu hadexpired by then) through registered partition under which each of themgot 50% of the property which ultimately amounted to 1.36 acres each.It is needless to observe that the said Narayanaswamy Mudaliar is theson of Pazanivelu Mudaliar. Subsequently, further partition took placebetween the two sons of Pazanivelu namely, Narayanaswamy andManickam on 5.4.1933 in respect of aforementioned 1.36 acres, i.e., ‘A’Schedule property allotted to their branch, which was entirely allotted toManickam in the partition of 1933. This share was subsequently alienatedby Manickam, and eventually repurchased by his brotherNarayanaswamy. Thus, it is clear that 50% of the entire property hadfallen to the share of the sons of Pazanivelu Mudaliar and the remaining50% remained with Chokalingam. It is not in dispute that the plaintiffsare the grandsons of Narayanaswamy Mudaliar. Thus they have inherited50% of the property, i.e., to the extent of 1.36 acres. It seems Chokalingamfell into debt and his property in question was brought to sale throughcourt auction. The auction was held on 21.12.1933 and SubbarayaMudaliar, i.e., father of the defendant was the purchaser in this court

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Aauction. Said Subbaraya Mudaliar died in the year 1940 leaving behindthe defendant. Thus, what could be sold in the court auction was only50% of 2.72 acres which was held by Chokalingam, i.e. 1.36 acres. Theremaining 50% of the property (i.e. ‘A’ Schedule) which vested withNarayanaswamy and his family could not be sold in the court auction.The order relating to the confirmation of sale in Execution ProceedingBRegistration No. 2/33 was produced and marked before the Trial Court,which contains the schedule of the property. Unfortunately, none of theparties have produced the judgment passed in O.S. No. 20/1918 whichultimately ended in court sale in E.P. No.2/33. Thus, this Court is not ina position to say exactly as to whether the entire property was the subjectCmatter of the court sale or not. Be that as it may, since Chokalingamwas the judgment debtor, at most only his share in the property could besold and it is not open for the purchaser to contend that he purchased theentire property though only 50% of the property belonged to the judgmentdebtor. The purchaser can not get higher right, title or interest in the

property than what vested with the seller. Ultimately the purchaserDtakes the risk, if he purchases the property which does not belong to thejudgment debtor. The purchaser at an auction sale takes the propertysubject to all the defects of title, and the doctrine of caveat emptor (letthe purchaser beware) applies to such purchaser. Therefore, evenassuming that the court auction sale was held in respect of the entireEproperty, it cannot be said that such sale was valid to the entire extent.At most, it can be said that it was valid to the extent of the propertywhich was owned by the judgment debtor i.e. Mr. Chokalingam, i.e.1.36 out of 2.72 acres. The remaining 50%, i.e., schedule ‘A’ propertywas owned by Narayanaswamy Mudaliar and his legal representatives.F6. The suit out of which this appeal arises is not mere suit forpartition. On the other hand, primarily it is suit for declaration of theplaintiffs’ title to the suit property, i.e., ‘A schedule’ property and forpermanent injunction restraining the defendants from entering thepossession of ‘A schedule’ property, which is nothing but 50% of theentire ‘B Schedule’ property which fell to the share of NarayanaswamyGMudaliar. Alternatively, it was prayed by the plaintiffs that if the plaintiffsand defendant are found to be in joint possession, they be granted therelief of partition and separate possession to the plaintiffs’ half share in‘B schedule’ property. It is relevant to note here itself that ‘B schedule’property measures 2.72 acres in its entirety, whereas ‘A schedule’Hproperty is 50% of ‘B schedule’ property, measuring 1.36 acres, which

fell to the share of Narayanaswamy Mudaliar in the partition of 1912.Since the partition had taken place in 1912 between Chokalingam andNarayanswamy Mudaliar (being the son of Pazanivelu), and as theplaintiffs inherited the property from Narayanaswamy Mudaliar, theyare entitled to 50% of the share in ‘B schedule’ property. The DivisionBench has rightly held that the plaintiffs are entitled to ‘A Schedule’property, which is the half share allotted to their branch in the partition of1912, out of ‘B Schedule’ property. Thus, the question of maintainabilityraised by the defendant fails.

7. The plaintiffs need not question the auction sale which wasconducted in 1933 inasmuch as, firstly, they are not parties to thoseproceedings including the execution proceedings and court auction.Secondly, by virtue of auction sale, the purchaser would get only theshare vested with Chokalingam inasmuch as Chokalingam alone wasthe judgment debtor. The property which is not owned by the judgmentdebtor could not be sold at all and therefore, evenassumingthatthesalecertificate is wrongly issued in respect of the entire property, thesame does not bind the plaintiffs inasmuch they continued to be theowner of 50% of the whole of the property.

8. It is no doubt true that in the suit filed by the temple against thefather of the defendant, the father of the plaintiffs was also arrayed asDefendant No. 2. It is also not in dispute that the father of the plaintiffsand the father of the defendant by engaging common advocate filed acommon written statement pleading that the temple was not the ownerof the property and that Defendant No.1 was the owner of the property.It is also not in dispute that the father of the plaintiffs admitted in the saidsuit that Defendant No.1 in the said suit, namely, the father of thedefendant herein, was the owner of the property. So also, in the suitfiled by the school, the father of the plaintiffs was also arrayed as one ofthe defendants along with the father of the defendant. In the said suitalso, common written statement was filed. Even in the suit filed by theschool, the defendants therein, i.e., the father of the plaintiffs herein andfather of the defendant herein jointly pleaded that the school was not theowner of the property and that the defendants were the owners. Boththe suits filed by the temple and the school came to be dismissed, holdingthat the temple as well as the school were not the owners of the property.From the aforementioned facts and the pleadings as well as the evidencerecorded in the said suits, it is amply clear that there was no dispute

Ainter se between the defendants. In other words, there was no disputewhatsoever regarding title between the father of the plaintiffs and thefather of the defendant in those two suits. The main question to be decidedin those suits was whether the third parties who had claimed rights wereentitled the property. Since the question of inter se title between thedefendant’s father and the plaintiffs’ father was not in issue and wasBalso not required to be decided in the disputes then raised, obviously, thedoctrine of res judicata cannot be applied between such co-defendants.9. However, there exist certain situations in which principles ofres judicata may apply as between co-defendants. This has beenrecognized by the English Courts as well as our Courts for more than aCcentury. The requisite conditions to apply the principle of resjudicataas between co-defendants are that (a) there must be conflict of interestbetween the defendants concerned, (b) it must be necessary to decidethis conflict in order to give the plaintiff the relief he claims and (c) thequestion between the defendants must have been finally decided. All theDthree requisite conditions are absent in the matter on hand. Firstly, therewas no conflict of interest between the defendants in the suits filed bythe temple and the school. Secondly, since there was no conflict, it wasnot necessary to decide any conflict between the defendants in thosesuits in order to give relief to the temple or the school, which were theplaintiffs. On the other hand, the father of the plaintiffs and the father ofEthe defendant were colluding in those suits filed by Temple and School.Both of them unitedly opposed those suits. In view of the same, theprinciples of res judicata would not apply. The Privy Council in thecase of Mt. Munni vs. Tirloki Nath, AIR 1931 PC 114 has observedthus:F“The doctrine of res judicata finds place in S.11 Civil P.C.,1908, but it has been held by this Board on many occasions thatthe statement of it there is not exhaustive; the latest recognitionof this is to be found in Kalipada De v. Dwijapada Das [AIR1980 PC 22]. For the general principles upon which the doctrineGshould be applied it is legitimate to refer to decisions in this country:see Soorjamonee Dayee v. Suddamund Mahapatter [I.A. Sup,Vol. 212], Krishna Behari Roy v. Banwari Lal Roy [(1874) 1Cal. 144], Raja Run Bahadur Singh v. Mt. Lachoo Koer [(1885)11 Cal. 301]. That there may be res judicata as between co-defendants has been recognized by the English Courts and by aHlong course of Indian decisions. The conditions under which this

branch of the doctrine should be applied are thus stated byWigram V.C., in Cottingham v. Earl of Shrewsbury [ (1843) 3Hare 627] at 638:

“If plaintiff cannot get at his right without trying and decidinga case between co-defendants, the Court will try and decide-that case, and the codefendants will be bound, but if the reliefgiven to the plaintiff does not require or involve decision ofany case between co-defendants, the co-defendants will notbe bound as between each other by any proceeding whichmay be necessary only to the decree the plaintiff obtains.”

This statement of the law has been accepted and followed inmany Indian cases: see Ahmad Ali v. Najabat Khan [(1895) 18All. 65], Ramchandra Narayan v.Narayan Mahadev [(1887) 11Bom. 216], Magniram v. Mehdi Hossein Khan [(1904) 31 Cal.95]. It is, in their Lordships’ opinion, in accord with the provisionsof S. 11, Civil P.C., and they adopt it as the correct criterion incases where it is sought to apply the rule of res judicata asbetween co-defendants. In such case therefore three conditionsare requisite: (1) There must be conflict of interest betweenthe defendants concerned; (2) it must be necessary to decidethis conflict in order to give the plaintiff the relief he claims; and(3) the question between the defendants must have been finallydecided.”

(emphasis supplied)

10. Once again, the very principles were restated in the case ofSyed Mohammad Saadat Ali Khan vs. Mirza Wiquar Ali Beg andothers, AIR (30) 1943 Privy Council 115, in which the followingobservations were made:

“In order that decision should operate as res judicata betweenco-defendants three conditions must exist: (1) There must be aconflict of interest between those co-defendants; (2) it must benecessary to decide the conflict in order to give the plaintiff therelief he claims; and (3) the question between the co- defendantsmust have been finally decided. There can be no doubt that inthe case under consideration the first and third conditions werefulfilled. Whether the second condition existed is the question tobe answered. The Chief Court held that it did not exist for the

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Areasons appearing in the following extract from their judgment.”11.Almost the same principles were reiterated in the case ofChandu Lal vs. Khalilur Rahaman, AIR (37) 1950 Privy Council 17,in which the following observations were made:

“In Munni Bibi and Another vs. Tirloki Nath, 58 I.A. 158: [AIRB(18) 1931 PC 114] the conditions for the application of thedoctrine of res judicata as between parties who have been co-defendants in previous suit are thus laid down: there must be-(1) conflict of interest between the codefendants, (2) thenecessity to decide that conflict in order to give the plaintiff theCappropriate relief, and (3) decision of that question betweenthe co-defendants.It may be added that the doctrine may applyeven though the party, against whom it is sought to enforce it, didnot in the previous suit think fit to enter an appearance and contestthe question. But to this the qualification must be added that, ifsuch party is to be bound by previous judgment, it must beDproved clearly that he had or must be deemed to have had noticethat the relevant question was in issue and would have to bedecided.”

(emphasis supplied)

In the case of Md. Saadat Ali (supra), though the first and third conditionsEwere fulfilled, the second condition was not fulfilled and hence it washeld that the principles of res judicata will not apply, meaning therebythat all the three conditions should be fulfilled in order to apply theprinciples of res judicata.

12. It is true that under Section 11 of the CPC, when the matterFhas been directly or substantially in issue in former suit between thesame parties or between parties under whom they or any of them claim,litigating under the same title, the decree in the former suit would operateas res judicata between the plaintiff and the defendant or as betweenthe co-plaintiffs or co-defendants. For instance, if in suit by P againstGD1 and D2, the matter is directly and substantially in issue between D1and D2 and adjudication upon that matter was necessary to determinethe suit to grant relief to P, the adjudication would operate as res judicatain subsequent suits between D1 and D2 in which either of them is plaintiffor defendant. In other words, if plaintiff cannot get his claimed reliefwithout trying and deciding case between the co-defendants, the courtHwill try and decide the case in its entirety including the conflict of interest

between the co-defendants and the co-defendants will be bound by thedecree. But if the relief given to the plaintiff does not require or involvea decision of any case between co-defendants, the co-defendants willnot be bound as between each other. This Court in the case of MahboobSahab vs. Syed Ismail and others, (1995) 3 SCC 693, considering theapplicability of the doctrine of res judicata between co-defendants heldthat the following four conditions must be satisfied, namely,

“(1) there must be conflict of interest between the defendantsconcerned;

(2) it must be necessary to decide the conflict in order to givethe reliefs which the plaintiff claims;

(3) the question between the defendants must have been finallydecided; and

(4) the co-defendants were necessary or proper parties in theformer suit.”

To reach the conclusion mentioned above, this Court relied uponthe judgments in the cases of Syed. Mohd. Saadat Ali Khan vs. MirzaWiquar Ali Beg, AIR 1943 PC 115; Shashibushan Prasad Mishra vs.Babuji Rai, AIR 1970 SC 809 and Iftikhar Ahmed vs. Syed MeharbanAli, (1974) 2 SCC 151.

13. Coming to the question of estoppel as argued by the defendant’scounsel based on the admission of the father of the plaintiffs in thepleadings and in his deposition regarding the title of the father of thedefendant in the aforementioned earlier litigations, it is no doubt true thatan admission is the best piece of evidence. However, an admission canalways be explained, unless such an admission gives rise to the principleof estoppel. The principle of estoppel could have arisen if the father ofthe defendant had acted to his detriment on the basis of the representationmade by the plaintiffs’ father as the basic requirement for attracting theprinciple of estoppel, is that the person to whom the representation hasbeen made must have acted on the basis of such representation, andparticularly to his own detriment. In the matter on hand, the father ofthe defendant knew about the correct position on facts and he very wellknew that he was the owner to the extent of 50% of the property only,and as he did not act to his detriment, the question of estoppel does notarise. As mentioned supra, it is well settled that in an auction purchase,the auction purchaser does not acquire any right over the property higherthan that of the judgment debtor. Since the principles of res judicatabetween co-defendants are not applicable in this case, and since mere

Aadmission does not operate as an estoppel, such admission does notcreate or pass any title in favour of the defendant’s father andconsequently to the defendant. On the other hand, it is apparent that thedefendant’s father had right over only half of the property in question,which he had purchased.B14. The Division Bench has rightly negated the contention of the

B14. The Division Bench has rightly negated the contention of thedefendant relating to adverse possession. From the evidence on record,the trial Court and the Division Bench of the High Court have come tothe conclusion that the defendant has failed to prove that he and hispredecessor-in-interest had possession over the entire property to theexclusion of the plaintiffs and their predecessor. No material is found onCrecord which emphatically discloses that the physical delivery ofpossession of the property was given to the auction purchaser by evictingor in exclusion of all the persons including the plaintiffs’ father and theplaintiffs. In the absence of such material, the Trial Court and the DivisionBench have rightly concluded that there was symbolic delivery ofDpossession in favour of the auction purchaser. However, the subsequentdocuments show joint possession of the plaintiffs and the defendant.Even now the names of both the parties are found in the revenue records.The documents do not show exclusive possession of either of the parties,but would indicate that they are in joint possession. Exhibits A-7, A-8and A-9 are the pattas which disclose the names of both the parties inEthe revenue records. Even the house tax receipts are in the name of theplaintiffs’ predecessor. ‘A schedule’ property has already been subjectedto partition inter se among the plaintiffs after the death of NarayanswamyMudaliar and the allotment of property in question, i.e. ‘A Schedule’ hasbeen made in favour of the second plaintiff as per Exhibit A-40. TheFaforementioned records and certain other material on record wouldnegative the contention of the defendant relating to adverse possession.The plaintiffs have proved satisfactorily that they are the owners of ‘ASchedule’ property, i.e., 50% of the property partitioned in 1912, whichhad ultimately fallen in the share of Mr. Narayanaswamy (grandfatherof plaintiffs) as mentioned supra.G

15. In view of the same, we do not find any reason to interferewith the impugned judgment of the Division Bench of the High Courtpassed in L.P.A. No. 70/2002 dated 29.01.2007. The instant appealaccordingly fails and is hereby dismissed.

Kalpana K. Tripathy Appeal dismissed.H