Res Judicata and Constructive Res Judicata
Q : ‘A’ files a suit for declaration that he is entitled to certain lands as heir to ‘B’. The suit is dismissed. Can he claim in later suit the same properties on the basis of adverse possession? Give reasons in support of your answer and also refer case law, if any, on the point.
U.P. Judicial Service Exam. 1982
22nd Bihar Judicial Service Exam. 1986
Rajasthan Judicial Service Exam. 1976 (Similar Problem)
West Bengal Judicial Service Exam. 1992 (Similar Problem)
Bihar A.P.P. Exam. 1997 (Similar Question)
Ans: No, ‘A’ cannot claim the same properties in the latter suit on the ground of adverse possession – Section 11 read with Explanation IV and Dhani Ram v. Rattan, AIR 1961 Punj 563.
Reasons: It is notable that one of the essential conditions for application of Section 11 (res judicata) is identity of matter in issue i.e., the matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue in the former suit.
Such matter may be directly and substantially in issue in previous and subsequent suits not only actually but constructively too in view of the provision made in Explanation IV of Section 11 which speaks as follows – “Any matter which might and ought to have been made ground or defence of attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.”
Thus, if a matter is actually directly and substantially in issue in former and later suits, Section 11 (Res Judicata) comes into play and the trial of later suit is barred by res judicata. But when the matter is not actually but constructively, directly and substantially in issue in former and later suits, Explanation IV of Section 11 which is known as ‘constructive res judicata’ comes into play and the subsequent suit is barred (constructive res judicata is special and artificial form of res judicata – Supreme Court in Amalgamated Coalfields v. Janpad Sabha, AIR 1964 SC 1013).
In the instant problem, though the case is not covered directly by Section 11 but when it is read with Explanation IV of Section 11, the subsequent suit by ‘A’ against ‘B’ (regarding the land on ground of adverse possession) is barred. The ground of adverse possession by ‘A’ should have been taken by him in previous suit itself along with the ground of succeeding the land as heir. If he did not do so, it would be deemed that the same ground, i.e., ground of ‘adverse possession’ has also been heard and finally decided by the court against ‘A’ and now ‘A’ cannot claim the same properties, i.e., lands in the subsequent suit in view of provisions made in Explanation IV of Section 11.
In support of above view, in Dhani Ram v. Rattan, AIR 1961 Punj 563 also, it was held that if plaintiff fails in a suit claiming lands on the ground of inheritance, he cannot bring another suit claiming the lands on the basis of possessory title (adverse possession).
The Supreme Court explaining the principle of ‘constructive res judicata’ in the case of Workmen C.P. Trust v. Board of Trustees, AIR 1978 SC 1283 held that when any matter which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made, then such a matter in the eyes of law, to avoid multiplicity of litigation and to bring about finality in it, is deemed to have been constructively in issue and, therefore, is taken as decided.
Note: It is notable that in Rajasthan Judicial Service Exam. 1976, Similar problem was asked in following terms: “ ‘A’ files a suit against ‘B’ for recovery of possession of certain land on the basis of a sale deed executed by ‘B’. The suit is heard and dismissed. Can ‘A’ claim in subsequent suit the same land on the basis of adverse possession?”