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2000 DIGILAW 772 (MAD)

Arumuga Thevar v. Ramasamy Thevar

2000-08-04

V.KANAGARAJ

body2000
Judgment : 1. Thedefendant in the suit and the respondent in the first appeal is the appellant in the above civil miscellaneous appeal and he has come forward to file the above Civil Miscellaneous Appeal against the judgment and order of remand dated 38. 1999 made in A.S.No.137 of 1994 by the Court of Principal District Judge, Pudukottai thereby setting aside the judgment and decree dated 21. 1993 made in O.S.No.32 of 1985 by the Court of District Munsif, Aranthangi and remanding the matter to the trial court for fresh trial to be held. 2. Advertingto the facts, the respondent herein had filed a suit in O.S.No.32 of 1985 on the file of the Court of District Munsif, Aranthangi praying to declare that he got title to the suit property and for directing the defendant therein to put the plaintiff in possession of the suit property failing which requesting the court to do the same through its process and further praying to grant mesne profits for three years past. The suit property is a landed property in an extent of 2.28 acres classified as ‘punja’ in the revenue records and falling under S.No.156/12 of Elampallam village, Aranthangi Taluk, Pudukottai District. 3. The trial court, having conducted a full trial, had dismissed the suit against which the plaintiff had preferred an appeal in A.S.No.137 of 1994 before the Court of Principal District Judge, Pudukottai. Among other issues, one issue framed by the trial court for determination was whether the present suit in O.S.No.32 of 1985 is hit by res judicata in view of the judgment rendered in O.S.No.792 of 1974. 4. Before the appellate court, the plaintiff has argued that the lower court has not decided the question of title even though the suit had been filed for declaration of the plaintiffs title and that he being the defendant in O.S.No.792 of 1974 has to establish his title separately and the appellate court judgment alone to be taken into consideration regarding the plea of res judicata and that there was no final decision or discussion on the question of his title in O.S.No.792 of 1974. 5. 5. The plaintiff would further argue before the appellate court that it had been observed in the judgment in O.S.No.792 of 1974 that from the analysis of oral evidence of both sides it can only be said that the plaintiff alone is in possession of the suit property and both the plaintiff and defendant have failed to establish their title on the basis of the title deed and that the patta is not a document of title and on the basis of patta the defendant must prove his title to the suit property by a separate suit’ and hence would argue that as per the direction of the District Munsif, Aranthangi in O.S.No.782 of 1974, he filed the present suit in O.S.No.32 of 1985 and hence would contend that it is not hit by res judicata. 6. Thedefendant has argued before the appellate court that even though the trial court has not decided the question of title, the question of title was decided incidentally and it was held that the defendant alone was in possession and the plaintiff considered the same to be a trespasser; that although there is no specific issue regarding the title of the plaintiff herein in O.S.No.792 of 1974, the decision of title is implicit that it must be deemed to have been necessarily decided by implication because in order to protect the possession of trespasser the court should give a clear finding that the obstructor has no title to the suit property. 7. The appellate court having regard to the pleadings of both parties and having regard to the arguments advanced on either side observed that even though the A.S.No.21 of 1979 preferred against the judgment and decree made in O.S.No.792 of 1974 was dismissed, the appellate court did not decide the question of title of the defendant therein and the second appeal preferred by the plaintiff herein also got dismissed even without notice to the other side at the admission stage itself. The appellate court further remarking that since there is a finding in O.S.No.792 of 1974 that the defendant therein must prove his title by a separate suit, the defendant therein has filed the present suit in O.S.No.32 of 1985, held that the present suit filed by the plaintiff is not hit by res judicata thereby allowing the appeal preferred by the plaintiff thus setting aside the judgment and decree of the trial court and further remanding the suit back to the trial court and further remanding the suit back to the trial court to decide the same on merit further requiring the parties to appear before the trial court on 10. 1999. 8. It is only having become aggrieved of this judgment and order of remand dated 38. 1999 by the first appellate court, the defendant in the suit and the respondent in the first appeal has come forward to prefer the above civil miscellaneous appeal on grounds that, (1) the learned District Judge failed to see that the plaintiff cannot agitate the question of title in the present action in as much as his claim was negative in the earlier suit in O.S.No.792 of 1974; (2) the learned District Judge failed to see that no grounds have been made out for reversing the judgment of the trial Court on the question of res judicata; (3) the learned Judge ought to have seen that this Court in the earlier proceeding in S.A.No.296 of 1990 held that even though the defendant has failed to make out his title, he would still be entitled to the injunction restraining the intruder; (4) the learned Judge failed to see that the judgment and decree in O.S.No.792 of 1974 on the file of the Court of District Munsif, Aranthangi and A.S.No.21 of 1979 on the file of the Court of Subordinate Judge, Pudukottai got merged in the decision of the High Court in S.A.No.296 of 1990; (5) the learned District Judge has further failed to see that in the earlier suit, injunction was granted in favour of the defendant on the basis of his possessory title, and (6) that the learned District Judge failed to see that even otherwise, the present action is barred by constructive res judicata as the plaintiff ought to have pleaded his title in the earlier suit for negativing the relief of injunction to the defendant herein. 9. 9. During arguments, the learned counsel for the appellant would argue that the suit has been filed for declaration of title and for delivery of possession; that the trial Court had dismissed the suit on question of res judicata and on appeal, the first appellate court found that the suit is not barred by res judicata because of the observation of the learned District Munsif in the earlier suit in O.S.No.792 of 1974 on title and remanded the suit for fresh trial to the trial court and the above civil miscellaneous appeal is preferred against the said order of remand. 10. The learned counsel for the appellant would further submit that it is O.41, Rule 23 that is relevant in the context of the case and would cite a decision of this Court delivered in Ratnasamy Mudaliar v. Rasu , (2000)2 MLJ. 89 wherein a learned single Judge of this Court relying on various earlier judgments of this Court in the context of the provision of law observed as follows: “The appellate court must come to the conclusion on the pleading or on the evidence place before it or on law that the judgment and the decree of the trial court are erroneous and therefore liable to be reversed or set aside. There must at least be a finding that there has been a misunderstanding of the pleadings of the parties or denial of an opportunity to place the materials they wanted to place before the court in support of their respective claims. In the absence of such a finding there can be no reversal or setting aside of the judgment and the decree of the trial court and consequent remand. The appellate court thereafter has to find out under O.41, Rule 24 whether the evidence on record is sufficient to enable the appellate court to pronounce judgment and if so, after re-setting the issue if necessary finally determine the suit. This, it can do even if the previous courts judgment has proceeded wholly upon some ground other than that on which the appellate court proceeds. This, it can do even if the previous courts judgment has proceeded wholly upon some ground other than that on which the appellate court proceeds. In case the previous court has omitted to .(i) frame or try any issue (or) .(ii) to determine any question of fact which in the opinion of the appellate court is essential to the right decision of the suit upon the merits, the appellate court can seek a finding from the trial court on such issues thus framed by the appellate court being tried by the trial court and then dispose of the appeal; (iii) in case where either the parties were prevented from adducing necessary evidence before the trial court or the appellate court itself wants fresh evidence to be recorded, itself wants fresh evidence to be recorded, O.41, Rule 27, Civil Procedure Code can be invoked and evidence recorded by itself or by the trial court. The appeal has to be retained by the appellate court on its file and (iv) failing the above, O.41, Rule 23 is to be invoked and the case remitted. The appellate court cannot take umbrage under the tried phrase “Interests of Justice” and send back all sundry cases to the trial court without all the previous requirements having been complied with. Remand is the exception rather than the rule.” 11. The learned counsel for the appellant would further cite a judgment of this Court delivered in M/s.Sekaran Real Estate, A Partnership Firm, by Managing Partner, K.Chandrasekaran v. Punjab National Bank, Mylapore, Madras by its Manager M/s.Sekaran Real Estate, A Partnership Firm, by Managing Partner, K.Chandrasekaran v. Punjab National Bank, Mylapore, Madras by its Manager M/s.Sekaran Real Estate, A Partnership Firm, by Managing Partner, K.Chandrasekaran v. Punjab National Bank, Mylapore, Madras by its Manager , (2000)2 MLJ. 100 wherein also a learned single Judge of this Court, relying on various judgments of this Court in the context of the provision of law held as follows: “It is clear from the above decisions as well as the provisions contained in O.41, Rules 23 to 29, C.P.C., that duty is cast on the appellate court to find that the decree of the trial court should be set aside. Even the fact that there are some defects or infirmities in the reasoning of the trial court is not a ground for the appellate court to remand the same to the trial court. The appellate court should come to the clear conclusion that the findings of the trial court cannot be supported and must be set aside. Only in exceptional cases where the judgment of the trial court is wholly unintelligible or incomprehensible the appellate court can remand the suit for fresh trial….” Citing the above judgments, the learned counsel for the appellant would point out that the appellate court should have sent for the documents and perused them in which event it would have realised that there is no necessity for a remand to be made. The learned counsel for the petitioner would end up his argument citing yet another judgment of this Court delivered in C.Arumugathan v. S.Muthusamy Naidu C.Arumugathan v. S.Muthusamy Naidu C.Arumugathan v. S.Muthusamy Naidu , (1991)2 MLJ. 538 : (1991)1 L.W. 63 wherein a Division Bench of this Court has held that, “In the instant case, the question of title was directly and substantially in issue in the former suit and the decision was rendered by a competent civil court. It was not collaterally or incidentally in issue…. The contention of respondents 1 to 3 that unless the finding regarding title is incorporated in the decree, it would not operate as res judicata cannot be accepted…. In the instant case, even though the earlier suit was for injunction, in view of the dispute with regard title in respect of the property in question, specific issue was framed and a finding was given and on the basis of title, the suit was dismissed and accordingly a decree was drafted.” .12. In the instant case, even though the earlier suit was for injunction, in view of the dispute with regard title in respect of the property in question, specific issue was framed and a finding was given and on the basis of title, the suit was dismissed and accordingly a decree was drafted.” .12. In reply, the learned counsel appearing for the respondent, citing relevant paragraphs from the judgments in O.S.No.792 of 1974 and A.S.No.21 of 1979, would submit that it was found in the earlier suit and appeal that the plaintiff had no title and hence only on possessory right, the judgment had been rendered even though it was a suit for declaration and possession; that in all the decisions cited on the part of the appellant herein, no liberty was given by the court to file a separate suit for title and it is only in this case it has been done so and hence the lower appellate court was left with no choice but the remand the matter for fresh trial to be held with due opportunity for both parties to be heard and would pray for dismissing the above civil miscellaneous appeal. 13. In consideration of the facts and circumstances as pleaded by parties and having regard to the materials placed on record and upon hearing the learned counsel for both, it comes to be known that it is a suit in O.S.No.32 of 1985 that has been filed by the respondent herein for declaration of his title to the suit property and for direction to the defendant therein to deliver the suit property. The suit property is a landed property extending 2.28 acres, classified as ‘punja’ in the revenue records. The trial court has framed a specific issue with reference to the judgment passed in the earlier suit in O.S.No.792 of 1974 to the effect that whether the present suit in O.S.No.32 of 1985 is hit by the principles of res judicata in view of the earlier judgment in O.S.No.792 of 1974e and even though the said suit had been filed for declaration of title and for delivery of possession, the trial court decided only the possession and not the question of title to the suit property. 14. 14. The further facts of the case are that in the said suit in O.S.No.792 of 1974, the defendant therein, who is the plaintiff in O.S.No.32 of 1985 was directed to establish his title separately and even on appeal in the said suit, the appellate court held that in case on hand we were not called upon to give any findings as to whether the defendant has got title to the suit properties and in the case of this nature the plaintiff must succeed only on the merits of the case’. It further comes to be known that the second appeal preferred against the said finding had also been summarily rejected at the time of admission itself and hence since no final decision was made regarding the question of title, the defendant in the earlier suit had come forward to file the present suit in O.S.No.32 of 1985 for declaration of title and for delivery of possession and the trial court having chosen not to give a finding for declaration but having determined only the question of delivery of possession, dismissed the suit. The first appellate court having conducted a thorough enquiry into the facts and circumstances encircling the whole affair and on perusal of the materials placed on record and upon hearing the learned counsel for both, had ultimately arrived at the conclusion that the trial court had been wrong in not deciding the question of title to the suit property as prayed for on the part of the plaintiff and has remanded the case to the trial court with remarks to take it on file and to decide the suit on merits further directing the parties to appear before the lower court on 10. 1999. .15. The main question that is argued on the part of the appellant herein is the question of res judicata. It is his contention that in the earlier suit, in O.S.No.792 of 1974 itself, which was a suit filed for declaration and injunction and rejecting the contention of the defendant therein on merit the possessory right was decided and hence filing of the present suit again for one and the same relief of declaration and delivery of possession is hit by the principles of res judicata. But it is the contention of the respondent that even though the earlier suit had been filed for declaration of title and the other reliefs, he had been specifically directed to agitate his right relating to the declaration in a separate suit depending upon the facts and circumstances of that case and hence since the question of title had neither been taken up for consideration nor decided and further on being specifically directed by the previous trial court to agitate the question of title in a separate suit, he has filed the present suit seeking the relief of declaration and delivery of possession and hence the present suit is not at all barred by Sec.11 of the Code of Civil Procedure. 16. It further comes to be known that for no better reason offered, the trial court in the present suit, had declined to consider and determine the question of the title again and since that came to force before the first appellate court on a clear discussion held, the first appellate court had arrived at the conclusion to remand the case for fresh trial and with direction to decide the question of title and two other reliefs sought for in the suit on merit and in accordance with law. In these circumstances, there is no point in the appellants argument that either the question of title had already been considered and rejected in the earlier suit or that the present suit is hit by the doctrine of res judicata as enshrined under Sec.11 of the Code of Civil Procedure. Hence, the only course that was open for the first appellate court was what it has done rightly in remanding the case for fresh disposal in consideration of all the factual and legal questions involved covering the entire prayer and to deliver the judgment determining all such questions on merit and in accordance with law. No other decision could be taken than the one arrived at by the first appellate court herein and hence the interference of this Court that is sought to be made into such a well merited and well considered judgment of the first appellate court is not only unnecessary but also unwarranted in the circumstances of the case. In result, the above civil miscellaneous appeal fails and the same is dismissed. No costs. The judgment and order of remand dated 38. In result, the above civil miscellaneous appeal fails and the same is dismissed. No costs. The judgment and order of remand dated 38. 1999 made in A.S.No.137 of 1994 by the Court of Principal District Judge, Pudukottai is hereby confirmed. Consequently, C.M.P.No.20878 of 1999 is also dismissed.