Res Judicata – Cause of Action – Doctrine of Ouster

‘Res judicata’ literally means a ‘thing adjudicated or ‘an issue that has been definitively settled by judicial decision. The principle operates as a bar to try the same issue once over. It aims to prevent multiplicity of proceedings and accords finality to an issue, which directly and substantially had arisen in the former suit between the same parties or their privies and was decided and has become final, so that parties are not vexed twice over; vexatious litigation is put an end to and valuable time of Court is saved. Jaswant Singh v. Custodian of Evacuee Property, (1985) 3 SCC 648 laid down a test: “The test is whether the claim in the subsequent suit or proceedings is in fact founded upon the same ‘cause of action’ which was the foundation of the former suit or proceedings.”

Kunjan Nair Sivaraman Nair v. Narayanan Nair, (2004) 3 SCC 27 interpreted ‘cause of action’: “In the restricted sense ‘cause of action’ means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which would be necessary to prove, if traversed, in order to support right to the Judgment of Court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises in ‘cause of action’.”

– Hon’ble Justice Kurian Joseph, Nagabhushanammal v. Chandikeswaralingam, [Civil Appeal Nos. 1858-1859 of 2016].


While explaining Doctrine of Ouster, Hon’ble Judges Joseph and Nariman quoted Syed Shah Ghulam Ghouse Mohiuddin v. Syed Shah Ahmed Mohiuddin Kamisul Quadri, (1971) 1 SCC 597: “On the contrary, possession by one co-owner is presumed to be the possession of all the co-owners unless it is established that the possession of the co-owner is in denial of title of co-owners and the possession is in hostility to co-owners by exclusion of them. In the present case there is no evidence to support this conclusion. Ouster is an unequivocal act of assertion of title. There has to be open denial of title to the parties who are entitled to it by excluding and ousting them.”

My Lord, Syed Shah, (1971) 1 SCC 597?

Hon’ble Justice A.N. Ray.


Lord Justice Fry put it in negative by saying, “Everything which, if not proved, gives Defendant an immediate right to Judgment, must be part of ‘cause of action’.”

This definition is the basis of all subsequent decisions containing an interpretation of ‘cause of action’. It was accepted in Deep Narain Singh v. Minnie Dietert, ILR (1904) 31 Cal 274 and by Privy Council in Mohammad Khalil Khan v. Mahbub Ali Mian, AIR 1949 PC 78.  

Mohammad Khalil Khan was taken notice of by this Court in Suraj Rattan Thirani v. Azamabad Tea Co. Ltd., AIR 1965 SC 295.

– Hon’ble Justice J.B. Pardiwala, Ganesh Prasad v. Rajeshwar Prasad, [Special Leave Petition No. 28377 of 2018] decided on 14.03.2023