Question Related to Adverse possession and subsequent petition. I. A files a suit for declaration that he is entitled to certain land as heir to ’B’. The suit is dismissed. Can he claim in later suit title… II.

Question: Question Related to Adverse possession and subsequent petition.

I. A files a suit for declaration that he is entitled to certain land as heir to ’B’. The suit is dismissed. Can he claim in later suit title to the same properties on the basis of adverse possession?

II. A Munsif decided in a maintenance suit that the husband has abandoned his wife and, therefore, the latter is entitled to maintenance. Does the subsequent petition filed by the husband for judicial separation under Section 10 of the Hindu Marriage Act, 1955 operate as res judicata? Give reasons for your answer.

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Answer

(I)

Under section 11 of the Code of Civil Procedure, 1908, for the rule of res judicata to be applicable, it is essential that the parties to the subsequent suit must have litigated under the same title as in the former suit. The test is the identity of title in the two litigations and not the identity of the subject matter involved in the two cases.

The facts in the given question is based on the case of Smt. Durga Devi v. Shashtri Prakash, AIR, 1961 Punjab 229, in which it was held that by virtue of rule of res judicata, a verdict against a man impleaded in one capacity will not affect his rights when proceeded against a man suing in another distinct capacity.

Hence, A first suing in the capacity of an heir to B will not stop him when he sues in another distinct capacity.

(II)

In this problem, the principle of res judicata does not apply because for the rule to be applicable, it is essential that the title should be the same. The former case dealt with maintenance and the latter case dealt with judicial separation. The title in both the cases were not the same. It is essential for section 11, Code of Civil Procedure, 1908, that the title should be the same.

Thus, the husband can file a subsequent petition for judicial separation under section 10 of the Hindu Marriage Act, 1955.

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