1. This, appeal is directed against.. judgment and decree dated March 15-1976 of the Additional District judge, Gurdaspur; by which the decision of the trial Court was affirmed and the defendant-appellant ` Kharaiti Lal's first appeal was dismissed.
2. The facts of this case in brief are that the plaintiff-respondent Mohan Devi executed a sale deed in respect of the house in dispute is favour of the defendant-appellant Kharaiti Lal on December 20, 1991. The plaintiff brought a suit challenging the validity of the sale need o. the plea that, 'the appellant had obtained. it from hereby, exerting undue influence. It was pleaded that' the transaction was unconscionable; without consideration and was based. on misrepresentation. The appellant while, contesting the suit denied these allegations and justified the transaction, He also objected that. the plaintiff is estopped from suing: On the pleadings of the parties the trial Court framed following issues:
(1) Whether' the 'sale deed in', question has been, got. executed from the plaintiff by the defendant by misrepresentation' undue influence and the sale deed is without consideration ' unconscionable and is liable to be set aside?
(2) Whether the plaintiff. is estopped from bringing the' present suit?
(3) Relief. '
3. The trial-Court accepted the plea of the plaintiff.-and held that. the appellant had obtained ;:the impugned' sale deed exhibit D. 1 by misrepresentation; without consideration and asserting undue' influence upon the plaintiff. In the opinion of the trial Court. the transaction was unconscionable. The plaintiff were not found to be estopped from filing the suit.. if these findings. the first issue was: held in plaintiff's favour and. the ;second against the defendant-appellant and resultantly, the. plaintiff's suit of possession of the house in dispute. well decreed the learned lower appellate Court affirmed the findings 'of the trial Court and dismissed the defendant ' appeal.
4. The concurrent findings Courts below that 'the impugned sale deed is liable to be set aside on the aforesaid grounds is a pure finding of fact and as such the learned appellant's counsel: rightly did not question the same in second appeal. The learned counsel contended that the plaintiff is infact estopped from. bring the suit' by her conduct well as on the principle of res judicata. ' The contention. of the learned respondent's counsel is that there is no error--in the view of the Courts below that the plaintiff is not estopped to bring the suit be her conduct. That type plea of res judicata it is submitted that this objection was neither taken up by the appellant in his pleadings nor it was urged before the trial Court or in first appeal It is contended that in any case there is no merit in this plea as there is no material to prove that the plaintiff's suit b barred by res judicata.
5. Regarding the plea of estopped b7 conduct there is no reason to interfered with.. this finding of the lower. appellate Court' on this point..The impugned sale need.:which has:been. set. aside::by the Courts below was executed on December 20, 1971. A few days thereafter the plaintiff executed a rent deed in appellant's favour on January 7, 1972 in which is the declared that after the sale of the ; house in favour of the appellant she was occupying the house as his tenant. The appellant's plea is that the execution'. of the rent deed spells estopped against the plaintiff having attorned to the appellant as his tenant in the house in dispute. The plea has necessarily to be rejected because the validity of the rent ; deed depended on the legality of the '. impugned sale deed. Once it is held that the sale deed is bad in law the very ; basis of the rent' deed is demolished. The ; question of the plaintiff attorning as a '. tenant in the appellant could arise only '. if the latter had acquired rights of 'I ownership in the house in dispute. Since thc impugned sale deed has been set ! aside being an invalid transaction the, consequent rent deed also' loses its validity, The sale deed and the rent deed must i be considered to be part of the sale transaction. If the sale falls so does the rent deed. In this situation there is not the least infirmity in the finding of the Courts below, that. the plaintiff is not ' estopped from filing the suit because of the rent deed. This finding is, therefore, affirmed.
6. Now adverting--.to the plea of res judicata the learned 'respondent's counsel at the very outset contended that it: cannot be entertained in this appeal because it was neither expressed by the appellant in the written statement not: pressed before the trial Court and the ' first appellate Court. It is submitted j that this plea should be considered to, have been waived by the appellant. In been resisted only on the plea of res judge support of this contention the learned counsel referred to Charan Dass v. Thakur Dass Mast Ram, AIR 1973 Him Pra 22. To this judgment it was held that if a party chooses not to plead such facts on which this plea is dependent, it can be stated to have waived the plea The learned appellants counsel on other hand drew my attention to a judgment of the Supreme Court in State of Punjab v, Bua Das Kaushal, AIR l9TF SC 1676, which lays down that even though no specific plea is taken in the written statement nor any issue is framed by the trial Court but the necessary facts are present to the mind of the parties, the plea of waiver of res judicata cannot be considered to have been waived. In the present case the sixth, decision of which is sought to operate as res judicata, was still pending when the appellant filed the written statement. An objection was taken in the written statement that in view of the pendency of the earlier suit the proceedings of the instant suit should be stayed under Section 10 of the Code of Civil Procedure. The plaintiff replied in the rectification that the earlier suit by that time had been decided and as such there was no ground to stay the later suit under Section 10. It is true that thereafter the appellant did not seek to amend the written statement nor to take the plea of res judicata, but such an omission is immaterial because the necessary facts were present to the mind of the parties. Hence absence of specific plea in the written statement does not debar the appellant from taking the plea of res judicata in this appeal as this plea is necessarily a question of law. It is held in Sha Shivraj Gopalji v. Edappakath Ayissa Bi, AIR 1949 PC 302, that the plea of res judicata being one o! law can be raised in second appeal though it was not pressed in lower Courts. Similar view was taken b a Ful1 Bench of Allahabad High Court in Muhammad Ismail v, Chattar Singh, (1882) H.R 4 All 69, wherein it was held that even when a plea of res judicata has not been urged in either of the lower Courts. or in the memorandum of appeal, if raised in the second appeal, it must be considered and determined either upon the record as it stands, or after the demand for findings of fact. On facts point it will also be relevant to refer to Chiranji Lal v. Ram Renwar, AIR lfi4a East Punj. 2B. fi that case the strict had judicata and not on any plea of estopped. It was held that the plea of res judicata is only a plea of estopped by judgment and if the defendant is unable to make at one species of estopped but the circumstances disclosed on the record make out a case of another species of estopped there is no reasonable ground for refusing relief to his--In the light of these precedents Z arxi of the firm view that. the appellant is competent to raise the plea of res judicata in this appeal even though it was neither pleaded in the written statement nor urged before the Courts below.
7. The learned appellant's counsel has replied upon the judge exhibit D,, I, which was passed inter parties in the earlier suit relating to the house in dispute. It is on the basis of this judgment that the present suit is alleged to be barred by res judicata. The objection of the learned respondent's counsel is that in the absence of the pleading upon which this judgment was delivered, the plea of res judicata cannot be considered for want of pertinent material. In this context I was referred to Gurrala Jaggrao v. Gopisetti Bhaaskara Ramchandra Rai Dora, AIR 1958 Orissa 58, in which it was held that a new plea of res judicata is not allowed to be taken at the appellate stage when further materials may be necessary for the purpose of determination of the issue. This judgment has no application to the present case because in the presence of the judgment Exhibit D. 4 no further material is necessary fact considering the plea of res judicata. It was held in Batakrushna Sahu v. Kunja Behari, AIR 1954 Orissa I32, that in order to decide whether a previous decision operates by way of ms judicata in the absence of the pleadings the Court has to construe the judgment given in that decision and see whether the judgment indicates any issue as the main issue, the decision whereon is sought to operate as res judicata. The same view was taken in Mohammad Ata Husain Khan v. Husain Ali Khan, AIR 1944 Oudh 139, by holding that the pleadings in the previous. suit were sufficiently incorporated in the judgment in that s it and it could be known what the issues before the Court writ. Thus, I am unable to agree with the learned respondent's counsel that in the absence of the pleading in the earlier suit the judgment Exhibit D. 4 does not deserve to be looked into to ascertain whether it operates as res judicata upon the present suit.
8. The ingredients which necessary for the application of the rule of res judicata are contained in Section 11 of the Code of Civil Procedure. It has, therefore, to be considered if the necessary ingredients are satisfied in the present case to hold that the judgment Exhibit D.4 operates as res judicata on the present suit.. A perusal of this section would show that the decision of the earlier suit would operate as res judicata upon the later suit only if the matter directly and substantially in issue was the same in both the suits between the same parties or between the parties under whom they of anyone of them claimed, litigating under the same title; which has been heard and finally decided in the earlier suit. Explanation IV appended to this section, which is material for our purposes, says that any matter which might and ought to have been made proved of defendant of attack in the former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
9. In order to ascertain the applicability of the principle of res judicata in the present case the matters directly and substantially. in issue in the two suits have to be looked' into. It may be recapitulated that in the present suit the plaintiff Mohan Devi challenged the validity of the sale deed which she had executed. in favour of the appellant Kharaiti Ial. The judgment Exhibit D. 4. indicates that in the earlier suit Amar Singh son of MohaL Devi was the plaintiff.' He had sued for possession of the house in dispute impleading his mother as well as the present appellant Kharaiti Lal as the defendants. It' was alleged by him that he was the sole owner of this. house and as such his mother Mohan Devi was not competent to sell the house to the present, appellant. It was also mentioned in the plaint that Kharaiti Lal bad obtained the sale deed from his mother by exerting undue influence on her. ; It appears that the suit was contested by Kharaiti Lal alone The trial Court rejected the plea of Amar Singh that he is the sole owner of the house. His mother Mohan Devi was found to be a co-sharer in the house and, therefore, competent to see her share to Kharaiti Lal. The suit of Amar Singh was consequently dismissed,
10. It is manifest from the comparison of the two suits that the matters directly and substantially in issue herein were not the same. As held in Hafiz Mohaunmad Fateh Nasib v. Swarup Chand Hukum Chand AIR 1942 Cal 1, 'in order to AIR ply rule of res judicata as. between Co-defendants in a previous suit these conditions are requisite: (1) there must be a conflict of interest between the defendants concerned; (2) it must be near to decide this conflict in order to give to plaintiff the relief he claimed and (3) the question be between the defendants must have been final Sp decided.' Divide in the earlier suit filed by the son of Mohan Devi, the material question was whether he was: the sole owner of the property in dispute. or. whether he and his r other Mohan Devi were joint owners, R was immaterial for the decision of that case whether the sale effected by, Mohan Devi in favour of Kharaiti La1 was valid Or not, If the finding of the Court has been that the Plaintiff Amar Singh was the sole owner of this property then decree to Possession had to be granted his favour irrespective of the validity otherwise of the sale effected by Mohan Devi in favour of Kharaiti Lal, e Court on the contrary found that Amar Singh and Mohan Devi were joint owners of the property and am this kind' the suit of Amar Singh was dismissed. It was wholly irrelevant for the dismissal of the suit whether the sale effect by Mohan Devi in favour of Kharaiti was lawful or not. Thus for the purpose of' the decision of the earlier suit he validity or the lack of it of the sale impugned in the Present litigation was wholly immaterial and irrelevant. The question regarding the validity of this sale was by not directly and substantially involved in the earlier, it. I1 is these e, While to urge that Mohan Devi ought to hale questioned the validity of the impugned. sale in the earlier suit. 'the explanation IV appended to Section 11 of the Civil P. C. mentioned above clearly lays down that any matter which might or ought to have been made ground of defence or attack' in the formed suit shall be deemed to have been a matter directly and substantially in' issue in that suit.' It is, however, plain taken the matter regarding the validity of the 'sale which is the issue in the present suit was riot a necessary ground. of defence in the earlier suit. The grounds which will be barred must he grounds which will the answers to the claim' made in the previous suit; i. e. they must be such as; if raised, would defeat the plaintiff's claim. If not; the party is not bound to raise them This means that there must be a claim before there can be a ground of. defence. It there is no claim at all there is no point in saying that a particular matter might and ought to have been raised as a ground 'of defence in the former suit.' In the present case it is quite clear that in the earlier suit the plaintiff in order to succeed had no necessary to challenge the validity of the sale which is the subject matter of the present suit. It was wholly immaterial for; the decision of; that case:.undoubtedly the Plaintiff in the earlier suit. had. alleged that Kharait'Lal had... obtained the sale deed from his mother Mohan Devi by asserting undue influence on her. By this. allegation was not material for the,decision of his case. A mere assertion in a plaint is not a claim unless the plaintiffs invites the Court's decision. on the matter, The success or failure of the earlier.suit depended on the determination of the question whether the plaintiff was. the sole owner of the disputed property or whether he and his brother Mohan Devi were joint owners. The assertion that Kharaiti Lal had obtained the impugned sale deed from Mohan Devi by asserting influence on her was. not a 'claim' ox the plaintiff in that.suit and it was not necessary for the plaintiff to have invited the Court's decision on this matter. It is, therefore, clear that, a)though t),ere was conflict of 'interest between Mohan. Devi and Kharai:i. La1. in the previous suit but it was. not necessary W decide this conflict in order to. gig the plaintiff ; Amar Singh the relief claimed by him. On. these: considerations.. it must' be inevitably held that the decision of the previous suit did not operate. res judicata upon the present suit.
For these reasons I find no merit in this, appeal and dismiss the. same ' with costs. '
11. Appeal dismissed.