In a recent judgment delivered by the Delhi High Court, it has been reaffirmed that re-agitation may or may not be barred as res judicata, but if the same issue is sought to be re-agitated, it also amounts to an abuse of the process of Court and the Court has the power to stop such proceedings summarily and prevent the time of the public and the Court from being wasted.
In the present case, the appellant had filed a suit for possession of properties on the basis of will. He lost the case and possession was handed over to the defendants on the basis of a court decree. The appellant filed a fresh suit for possession of the said property on the basis of adverse possession. The Trial Court dismissed the said suit.
In appeal, the High Court held that it is an abuse of process of the Court and contrary to justice and public policy for a party to re-litigate the same issue which has already been tried and decided earlier against him. It was yet further held that re-agitation may or may not be barred as res judicata, but if the same issue is sought to be re-agitated, it also amounts to an abuse of the process of Court and the Court has the power to stop such proceedings summarily and prevent the time of the public and the Court from being wasted.
It was further held that the plea of adverse possession, even if available to the appellant/plaintiff for defending his possession of property, ought to have been taken by the appellant/plaintiff in his defense to the suit for mandatory and permanent injunction filed by the respondents/defendants against him for recovery of possession of the portion of the said property in his possession. The said plea is now barred by the principle of constructive res judicata enshrined in Explanation IV of Section 11 of the CPC; which provides that any matter which might and ought to have been made ground of defense or attack in former suit, shall be deemed to have been a matter directly and substantially in issue in such suit. Section 11 provides that 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.
The Court referred to its decision in in Manmohan Service Station Vs. Mohd. Haroon Japanwala 54 (1994) DLT 552, wherein it was held that a suit for declaration of title acquired by adverse possession and for restraining person claiming to be title owner from selling the property to be maintainable. However it was guided by the Supreme Court’s recent ruling in Gurudwara Sahib Vs. Gram Panchayat, wherein it was held that even if plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership; only if proceedings are filed against such person arrayed as defendant, can he use his adverse possession as a shield/defense. The suit from which the appeal arose, insofar as for declaration of title by way of adverse possession, thus in any case appears to be not maintainable.
Finally the Court was impressed by the very fact that the suit, even though under Section 6 of the Specific Relief Act, had been decreed and which decree also has attained finality, shows that it must have been found and held that the appellant/plaintiff had within six months prior to the filing of that suit dispossessed the respondents/defendants no. 1 & 2 from the possession of the said portion. Without such finding, a suit under Section 6 of the Specific Relief Act could not have been decreed. Once it has been so held, the plea of the appellant/plaintiff of adverse possession failed.
