Makardhwaj vs Jagdish Rai and Ors [2026 SCC Online SC 1112]

It is fascinating to note that in a recent judgment delivered on June 11, 2026 in Makardhwaj vs Jagdish Rai and Ors [2026 SCC Online SC 1112], the Apex Court, comprising Hon'ble Justice Sanjay Karol and Hon'ble Justice Kotiswar Singh, has given finality to a litigation which arose more than six decades ago. By interpreting the doctrine of constructive res judicata, the Apex Court has rendered complete and substantial justice to the parties.

Briefly stated, the Hon'ble Supreme Court was dealing with an issue arising in respect of a chunk of land admeasuring about 90 acres, which was transferred by Mahabir Rai on July 27, 1960 to his mother and his son, Makardhwaj, the present Appellant before the Hon'ble Supreme Court, who was born around that time. On April 23, 1962, Mahabir Rai along with his wife and mother executed a GPA in favour of Ram Bhajan, one of his cousins. Ram Bhajan disposed of 21 acres in January 1969 and 33 acres in February 1969.

Mahabir Rai, on coming to know of this, preferred two suits seeking cancellation of the sale deed of the above referred two pieces of land which was almost half of the total land originally transferred to him. These suits were dismissed by the Ld. Civil Judge. Encouraged by the dismissal of these suits, GPA holder Mr Ram Bhajan sought mutation of the remaining property in his own name in the land records. At the first instance, it was dismissed, but was allowed in Appeal by the Appellate Court.

Under these circumstances, Makardhwaj initiated proceedings for declaration of title and possession of his land against Ram Bhajan. On May 7, 1993, the suit was partly decreed and Makardhwaj was entitled to 43.69 acres out of the 95.8 acres claimed. Subsequently, the successor-in-interest of Ram Bhajan, Jagdish Rai (the Respondent before the Apex Court), appealed to the learned ADJ, who dismissed the appeal on March 11, 1996. Jagdish Rai took the matter to the High Court in appeal, which allowed the same by setting aside the decree on the basis of constructive res judicata.

On behalf of Makardhwaj, it was argued that the two rounds of litigation regarding the properties in question were based on different causes of action, as the earlier suits were filed on being aggrieved by the two unauthorised sale deeds by the GPA holder Ram Bhajan. The occasion for initiating the second round of litigation arose only when Ram Bhajan sought illegal mutation in the revenue records in his name to grab the remaining land.

The Hon'ble Supreme Court analysed the principle of res judicata and constructive res judicata as incorporated in Section 11 and Explanation IV of the CPC respectively. Indeed, the Hon'ble Supreme Court delved into a threadbare analysis of the said doctrine beginning from the judgment of the Privy Council in the case of Kameshwar Prasad vs Rajkumari Ratan [1892 SCConline PC 16]. After looking into jurisprudence evolved over the last 150 years, the Supreme Court was pleased to cull out six important aspects which should govern the applicability of constructive res judicata in a given case. These six prophetic points are summarised in paras 8(1) to 8(6), which are reproduced hereinbelow:

• 8.1 Constructive res judicata mandates that all grounds that might and ought to have been employed in the proceedings, should be employed to avoid multiplicity of proceedings.
• 8.2 It is a deeming fiction of law, but its application is not uniform and instead is dependent on the facts and circumstances of a particular case with 'due regard to ambit of the earlier proceedings' and 'the nexus which the matter bears to the nature of the controversy'.
• 8.3 This principle is founded on public policy. It is a generally acceptable rule that one person should not be "vexed twice over" for the same kind of litigation. As such, it also applies to the proceedings under Article 226/32 of the Constitution of India.
• 8.4 In respect of 'ought' referred above, the said word implies the threshold to be above mere possibility.
• 8.5 The parties while conducting litigation are expected to apply 'reasonable diligence', 'legitimate purview'. It is from this lens that it shall be adjudicated whether all issues that were properly arising to the litigation, which ought to have been raised, were raised or not.
• 8.6 The principle applies with equal force in cases where the ground that might and ought to have been raised was not done, on account of negligence, inadvertence or accident. In other words, might and ought to apply cumulatively with full force, without exception. The party therefore commits these errors at their own peril.

Applying the above said principles, the Supreme Court held that the judgment of the High Court based on the application of constructive res judicata could not have been countenanced as the High Court missed an important aspect which is summarised in a few lines in para 13, reproduced below:

The Appellant-Plaintiff by virtue of 1960 deed was the owner of a large portion of land. According to him Rambhajan had wrongly sold off parts thereof in two independent transactions therefore, acting through his parents, he challenged both those transactions. Where and how does the question of asserting his right over the larger parcel of land emerge when the same already rests undisputedly in his favour by virtue of the 1960 deed? When the apprehension arose by virtue of Rambhajan's application to mutate his name in the relevant records with respect to the entire property in excess of what was part of sale transaction, came the suit by Makardhwaj, asserting his right which had, in his view, been hitherto unquestioned. This question missed the attention of the High Court.

Allowing the appeal preferred by Makardhwaj, the Apex Court pertinently held in Para 14 that:

The application of law, especially when it comes to inter family disputes is not akin to enforcing the black letter of the law but calls upon the Judge to understand the surrounding facts and circumstances and in the light thereof come to a conclusion in accordance with law. The part of the appellant-plaintiff's right which was threatened was challenged so in effect, he through his guardians, was protecting his rights. There was no occasion to do anything further. When this is the reality, to apply a principle of law which would lead to an unduly harsh and unjust consequence, would be offensive to both law and equity in these circumstances. As such, the impugned judgment must be set aside.

Further in para 14, the Apex Court remarked that Makardhwaj's judgment in hand reflects an excellent amalgamation of law, fact and equity. Indeed, such a meaningful exercise of jurisdiction by resorting to purposive interpretation of law by the Courts does not depend upon any specific statutory or constitutional provision, but "it is a power inherent in the court by virtue of its duty to do justice between the parties before it." This was observed by the Apex Court in the case of Shavax Lal vs Syed Masood Hussein [AIR 1962 SC 527] in 1962 and reiterated subsequently by many High Courts.

In fact, after analysing the judgment in Makardhwaj, one readily recollects the apt observation of Lord Cairns in Rodger vs Comptoir D'Escompte De Paris, made more than 150 years ago in 1869:

Now their Lordships are of the opinion, that one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors, and when the expression 'the act of the Court' is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case.