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?

Question: 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 to case law, if any, on the point. [UPCJ. 1982, B.J. 1986, Raj J. 1976, WB J 1992]

Find the answer to the mains question only on Legal Bites. [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 to case law, if any, on the point.]

Answer

Explanation IV of Section 11 of CPC states the principle of constructive res judicata. It means that the parties to the litigation should bring their whole case before the court in a candid manner. It says that any matter which might or ought to have been made a ground of defence or attack in the former suit shall be deemed to have been a matter constructively in issue in that suit.

In the case of Dhani Ram Bishan Das And Anr. v. Rattan Das AIR 1961 P H 563, the court held that In the first suit filed by them, this ground of possessory title was available to them and they could have easily taken the same at that time. In view of Explanation IV to Section 11, Civil Procedure Code, the present suit would be clearly barred.

It was held in Full Bench decision of the Lahore High Court in Mt. Sardaran v. Shiv Lal, AIR 1944 Lah 282, that were the right claimed in both suits is the same, the subsequent suit will be barred as res judicata, though the right in the subsequent suit is sought to be established on a ground different from that in the first suit.

In the first suit, they were claiming ownership on the ground of inheritance, while in the second one, in a different capacity, that is, on the basis of possessory title. In my opinion, there is no merit in this Contention. In both the suits, they were claiming ownership of the property for themselves in their personal capacity.

In the first suit, the ground of their ownership was an inheritance and in the second suit, it was of possessory title. As already mentioned above, the right claimed in both the suits was the same, though the grounds on which the same was based, were different.

In the given question, 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 the ground of adverse possession) is barred. The ground of adverse possession by ‘should have been taken by him in the 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., the 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.

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