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Q. ‘A’ sues ‘B’ for certain land in his personal capacity. The suit is heard and dismissed. Against ‘A’ sues ‘B’ for same land in the same court as Mutwali. Is the subsequent suit barred by Res Judicata? Give reasons in support of your answer and also refer the case law on the point, if any.

Ans: No, subsequent suit is not barred by ‘res judicata’—-Sita Nath v. Manoranjan, 68 CLJ 293 AND Supreme Court in Rajlakshmi v. Banamali, AIR 1953 SC 33.

Reasons: One of the essential conditions for the application of Section 11 (res judicata) is that the parties in the former suit and later suits must have been litigating under same title (in the same capacity).

In the instant problem ‘A’ sues ‘B’ in the previous suit in his personal capacity whereas he sues ‘B’ as Mutwali in subsequent suit under different titles. Thus, doctrine of res judicata will not apply in this case.

The facts of this problem have been taken from the above referred famous case of Sita Nath v. Manoranjan. In this case also, the court held that a prior suit against a party in his personal capacity does not operate as res judicata in a later suit by him as Mutwali, though the properties i.e., land in both the suits are same.

In support of above view the Supreme Court in Rajlakshmi v. Banmali (referred above) and in Ram Govind v. Bhakta Bala, AIR 1971, held that the test for the application of res judicata is the identity of title in two litigations and not the identity of actual property involved in two suits and if the parties are litigating under different titles in former and later suits, the doctrine of res judicata will not apply even though the subject-matter in both the suits are same.

Note: Mutwali—The term Mutwali is an expression of Muslim Law. ‘Mutwali’ is a person who administers the properties of Wakf.
– Kishor Prasad

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