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2005 DIGILAW 1575 (MAD)

M. Perumal v. Sonaiya Servai

2005-09-20

R.BANUMATHI

body2005
Judgment :- (Prayer: - Appeal filed against the Judgment and Decree in A.S.No.33/1996 on the file of the District Court, Sivagangai, reversing the Judgment and Decree in O.S.No.66/ 1993 on the file of the District Munsif Court, Manamadurai dated 25.01.1996.) This Second Appeal arises out of the Judgment and Decree made in A.S. No.33/1996 (dt.16.7.1996) on the file of the District Court, Sivagangai, reversing the Judgment and Decree made in O.S.No.66/1993 on the file of the District Munsif Court, Manamadurai, dated 25.01.1996. The Defendants are the Appellants. For convenience, the parties are referred in their original rank in the suit. 2.The Plaintiff/Respondent has filed the suit O.S.No.66 /1993 for declaration, recovery of possession, after demolishing the thatched shed put up in the Suit Property and in the alternative prayed for Mandatory Injunction to demolish the thatched shed put up in the Suit Property. D-2 is the wife of D-1. 3.The Suit Property is situated in Valayanendhal Village nearly Puliyoor in Ilyangudi Taluk measuring about East West – 10ft; North South - 16ft. Case of the Plaintiff is that the Suit Property and the adjacent properties on the East West belonged to Plaintiff's father Nagu Servai and his brother Narayanan Servai. In the year 1931, Plaintiff's father Nagu Servai and his brother Narayanan Servai sold the property on the Eastern side measuring East West - 30 Kaladi; North South - 60 Kaladi and two other properties to the first Defendant's father – Muthukaruppan. 4.Further case of the Plaintiff is that remaining 45 Thachumuzham property fell to the share of Narayanan Servai. One Veerappudaiyar filed a suit against Narayanan Servai and obtained a decree. In execution of the decree in E.P.No.633 of 1934, the Plaintiff's father Nagu Servai purchased the property in Court Auction Sale on 7.8.1935. D-1's father Muthukaruppan was enjoying the property purchased from the Plaintiff's father and Narayanan Servai. One Vellaikoothan is the elder son of the said Muthukaruppan. The first Defendant Perumal is the fourth son. After the death of Muthukaruppan, his sons were in enjoyment of the property purchased by them under the Sale Deed dated 29.09.1931. In the year 1960, Vellaikoothan attempted to encroach the Plaintiff's property measuring about East West - 20ft; North South - 60ft. There was earlier litigation proceedings between the Plaintiff's father Naguservai and the said Vellaikoothan. After the death of Muthukaruppan, his sons were in enjoyment of the property purchased by them under the Sale Deed dated 29.09.1931. In the year 1960, Vellaikoothan attempted to encroach the Plaintiff's property measuring about East West - 20ft; North South - 60ft. There was earlier litigation proceedings between the Plaintiff's father Naguservai and the said Vellaikoothan. In the execution proceedings, the property, East West measuring 20ft; North South measuring 50ft, was delivered to the Plaintiff's father. The Plaintiff's allegation is that the Defendant encroached East West - 8ft which was the property decreed in the earlier suit O.S.No.327/1960 and taken delivery of possession in E.P.No.278/1966. On those averments, the Plaintiff has filed the suit for East West 1ft; North South 16ft. 5.Denying the averments in the Plaint and the correctness of the measurements and boundaries of the Suit Properties, the Defendants have filed the Written Statement contending that they were not parties in O.S.No.327/1960, on the file of the District Munsif Court, Paramakudi and that they are not parties in the Appeal and the Execution Proceedings and therefore, the earlier Judgment is not binding on them. According to the Defendants, the suit O.S.No.327/1960 was filed only against Vellaikoothan in his individual capacity and not as Manager of the joint family. The Defendants are in enjoyment of the property for more than the prescribed period. On the South of the Suit Property, the Plaintiff owns no property. The Defendants have constructed house about 34ft in the East West to the East of the Plaintiff's house; and on the West of the Defendant's house, they have left 1½ feet lane and on the West of the said 1½ feet lane, there is a fence in the North South Direction and the Plaintiff is having the property only on the Western Side of the fence. Denying any encroachment on the Plaintiff's property, the Defendants have filed the Written Statement. 6.The trial Court has framed as many as 12 issues. The Plaintiff was examined as PW-1 and Exs.A-1 to A-6 were marked. The first Defendant was examined as DW-1 and one Mani @ Ramachandran was examined as DW-2. Commissioner was appointed, who has filed his Report and Plan as Exs.C-1 and C-2. Documents Exs.B-1 to B-4 were marked. In consideration of the evidence adduced by the parties, the trial Court dismissed the suit pointing out that there is a discrepancy in the measurement. Commissioner was appointed, who has filed his Report and Plan as Exs.C-1 and C-2. Documents Exs.B-1 to B-4 were marked. In consideration of the evidence adduced by the parties, the trial Court dismissed the suit pointing out that there is a discrepancy in the measurement. It was found that the contention of the Plaintiff that he is entitled to East West 15 Thachumuzham, is at variance from the measurement in the Commissioner's Report and Plan (55ft) and Ex.A-3 - Patta (14.4 meters). The trial Court found that the Plaintiff has not established his right and title to EXABCG2G1GYF by documentary and oral evidence. Finding that the Plaintiff has not established his title to ABCD property, the trial Court found that the Plaintiff has not adduced evidence, showing his entitlement to the property on the Eastern Side of the fence. On those findings, the trial Court dismissed the suit. 7.Emphasizing that the Defendants are barred by Resjudicata in view of the previous proceedings, the Plaintiff has preferred the appeal A.S.No.33/1996. After extracting Section 11 and Explanation 7, the lower Court found that the Judgment of the District Munsif Court Paramakudi in O.S.No.327/1960 and the Judgment of the First Appellate Court in A.S.No.232/1964 was binding on the first Defendant. The Lower Appellate Court was of the view that the Plaintiff and his father had filed Execution Petition in E.A.No.278/1966 and got delivery of the same through the proceedings in E.A.No.278/1966 and that the Defendants are bound by the same. The lower Appellate Court accepted the contention of the Plaintiffs that though the first Defendant was not a party to the earlier proceedings, the same was binding on him, since his brother Vellaikoothan was a party in the said suit and that he was a Defendant in his capacity as Kartha of the family. Finding that the first Defendant is bound by the earlier proceedings, O.S.No.327/1960 and A.S.No.332/ 1964, the lower Appellate Court found that D-1 is precluded from putting forth the defence that his entitlement to the property and his claim is barred by Resjudicata. On those findings, reversing the Judgment of the trial Court, the First Appellate Court allowed the appeal and thereby decreeing the Plaintiff's suit. 8.As against the reversal of the Judgment of the trial Court, the Defendants have preferred this appeal. On those findings, reversing the Judgment of the trial Court, the First Appellate Court allowed the appeal and thereby decreeing the Plaintiff's suit. 8.As against the reversal of the Judgment of the trial Court, the Defendants have preferred this appeal. Assailing the findings of the lower Appellate Court, the learned counsel for the Appellants/Defendants has mainly contended that the lower Court committed a serious error in formulating the question of Resjudicata for the first time in the Appellate Court. Submitting that the subject matter of the earlier suit and the present Suit Property are not established to be the common property and that the first Defendant being not a party to the earlier suit, the lower Court ought to have found that the principles of Resjudicata would not apply to the facts of the case. Drawing the attention of the Court to Ex.A-2 and the Commissioner's Report and Plan, the learned counsel has submitted that when there is a clear demarcating boundary, the First Appellate Court erred in finding that the Plaintiff has got title to the Suit Property. 9.Placing reliance upon AIR 1977 Madras 209 and AIR 1984 Patna 316, it is submitted that for the first time in the Appellate Court, the plea of Resjudicata cannot be raised. It is further submitted that the plea of Resjudicata being a mixed question of law and facts, the First Appellate Court erred in finding that the Defendants are barred by Resjudicata. 10.Countering the arguments, the learned counsel for the Plaintiff has submitted that by virtue of the earlier proceedings in O.S.No.327/1960, A.S.No.232/1964, E.A.No.278/ 1966, the First Appellate Court has rightly found that the Plaintiff has become the owner and that the defence is barred by Resjudicata. It is further submitted that the Plaintiff's entitlement to EXABCG2G1GYF is well proved and his entitlement to the Suit Property is proved by Ex.A-2 – Delivery Receipt. It is also submitted that the defence of adverse possession is neither pleaded nor proved by the Defendants. The learned counsel for the Plaintiffs has also submitted that Vellaikoothan was impleaded as Defendant in the earlier proceedings in his capacity as the Kartha of the family. The first Defendant is precluded from contending that he is not bound by the earlier proceedings. The learned counsel for the Plaintiffs has also submitted that Vellaikoothan was impleaded as Defendant in the earlier proceedings in his capacity as the Kartha of the family. The first Defendant is precluded from contending that he is not bound by the earlier proceedings. In support of his contention, on the principles of Resjudicata, that the issue which has become final cannot be re-agitated, the learned counsel for the Plaintiff has relied upon a number of decisions - AIR 2004 SC 2186 and other decisions. 11.The second appeal was admitted on the following substantial question of law :- "Whether the lower Appellate Court is correct in reversing the Judgment and Decree of the trial Court without even discussing the entire issue raised before the trial Court ?" 12.It is a case of reversal Judgment by the Appellate Court, on the ground of Resjudicata, which was not raised before the trial Court and hence to answer the substantial Question of Law, it has become necessary to analyse the evidence adduced by the parties, to resolve the contentious points urged. 13.The Suit Property is in Valayanendhal village near Puliyoor in Ilyangudi Taluk, measuring East West 10ft; North South 16ft. The Suit Property and the adjacent property on the Western side originally belonged to the Plaintiff's father Nagu Servai and his brother Narayanan Servai. Old Survey Number of the same is not known. Ex.B-1 - Sale Deed (dated 29.09.1931), in favour of D-1's father is the earliest document on record. Under Ex.B-1 – Sale Deed, the Plaintiff's father Nagu Servai and his brother Narayanan Servai sold four items of properties to D-1's father Muthukaruppan. Item No.3 measuring East West - 30 Kaladi; North South - 60 Kaladi; is the relevant property immediately adjacent on the East of the Plaintiff's property. Item No.3, Sale Deed - under Ex.B-1 is described as under: "3 tJ re;Jf;Fk; nkw;F. Kj;JfUg;gd; fhyp kidf;F 2tJ k; bjw;F v';fs; tPl;Lf;Fk; fhyp kidf;Fk; fpsf;F fpsnky; t!;jht[f;Fk; tlf;F ,jw;Fs;shd fhypkidf;F fpsnky; fhyo Rkhh; Kg;gJ bjd;tl fhyo Rkhh; mWgJ lt[dpYs;sJ/" 14.According to the Plaintiff, deducting the property sold under Ex.B-1 - Sale Deed, Plaintiff's family is entitled to East West - 45 Thachumuzham and North South - 30 Thachumuzham. Absolutely, there is no documentary evidence showing the Plaintiff's family's entitlement to 45 Thachumuzham on the East West and 30 Thachumuzham on the North South. Absolutely, there is no documentary evidence showing the Plaintiff's family's entitlement to 45 Thachumuzham on the East West and 30 Thachumuzham on the North South. In the oldest document in Ex.B-1, there is nothing to indicate the total entitlement of the Plaintiff's family and in the total extent of EXABCG2G1GYF claimed by the Plaintiff. 15.Case of the Plaintiff is that East West-45 Thachumuzham property had fallen to the share of Narayanan Servai. It is alleged one Verappaudayar filed a suit against Narayanan Servai and obtained a Decree and brought the property in Court Auction Sale in E.P.No.633/1934, in which the Plaintiff's father Nagu Servai is said to have purchased the property in Court Auction Sale on 07.08.1935. No document has been produced showing the Court Auction purchase by Plaintiff's father Nagu Servai and the exact entitlement of the Plaintiff's family. 16.The definite case of the Plaintiff is that excluding the property sold to D-1's father Muthukaruppan under Ex.B-1, Plaintiff's father was entitled to East West - 45 Thachumuzham and North South - 30 Thachumuzham. The only document relied upon is the Delivery Receipt in EP 278/1966 in O.S.No.327/1960. In the year 1960, D-1's father - Vellaikoothan is alleged to have attempted to encroach the Plaintiff's property at about 20ft East West and 60ft North South. The Plaintiff and his father Nagu Servai filed O.S.No.327/1960. That suit was dismissed. Thereafter, the Plaintiff and his father Nagu Servai filed the appeal in the Sub Court, Ramanathapuram. The matter was remanded to the lower Court. After remand, the District Munsif Court Paramakudi partly decreed the suit. Thereafter, Vellaikoothan had filed the appeal in A.S.No.232/1964. Confirming the Judgment and Decree and finding that the Plaintiff's thereon are entitled to certain portion, the appeal was dismissed. In execution of the Decree E.P.No.278/ 1966 was file and delivery was ordered. Ex.A-2 is the Delivery Receipt. Under Ex.A-2, delivery was effected to the following extent: East West .... 20ft North South .... 50ft In Ex.A-2, the total extent is described as East West - 45 Thachumuzham and North South - 30 Thachumuzham within the following boundaries. In execution of the Decree E.P.No.278/ 1966 was file and delivery was ordered. Ex.A-2 is the Delivery Receipt. Under Ex.A-2, delivery was effected to the following extent: East West .... 20ft North South .... 50ft In Ex.A-2, the total extent is described as East West - 45 Thachumuzham and North South - 30 Thachumuzham within the following boundaries. "tiya nde;jypy; fpHnknyhoa tPjpf;Fk; tlf;F nfh/Kj;Jf;fUg;gd; fhypkidf;Fk;/ bjw;F bjd;tly; tPjpf;Fk; fpHf;F gpujpthjpapd; jfg;gd; 1k; thjp tifawhtplk; fpiuak; th';fpa kidf;Fk; nkw;F ,jw;Fl;gl;l fpH nky; 45 jr;R KHk; bjd; tl; 30 jr;R KHk; mst[s;s tPLfs; fhyp kid tifauhtpy;" 17.The property for which delivery was effected is described as :: "gpujp thjp fPH;g[uk; Mf;fpukpg;g[r; bra;jpUf;Fk; ghfk; fpHnky; Rkhh; 20 mo bjd;tly; 50 mof;Fkl;lhYk; c& brhj;jpy; igdy; of;fphpa[ldpUf;Fk; fkpc&dh gpshd; Ex.C-2 y; fz;l M M1 P2 P3 gpshl; c& brhj;jpy; c& gpshl;il c& ghj;jpaijfSld; Civil Procedure Code, Order 21, Rule 35 d;; gpufhuk; ehd;vdf;fht[k; ,e;j ek;gh; 1k; thjpf;fhft[k; mkPd; K:yk; xg;g[f; bfhz;L vd; RthjPdk; bra;J bfhz;nld; ///". 18.To show that the Plaintiff's family is entitled to the total Extent of East West - 45 Thachumuzham and North South - 30 Thachumuzham, only the self statement in the earlier proceedings O.S.No.327/1960 and E.P.No.278/1966, is relied upon. The said total measurement in the earlier proceedings must only be a self statement by the Plaintiff. No doubt, out of the entitlement of the Plaintiff's Family, delivery was effected to the extent of East West - 20ft and North South - 50ft. It may be that delivery was effected to that extent of East West - 20ft and North South - 50ft. Ex.A-2 - Delivery Receipt cannot be accepted as the Document of Title for the entire extent of East West-45 Thachumuzham. 19.In Ex.C-2 – Plan, the Suit Property is shown as ABCD measuring: East - West ... 10ft North - South ... 19ft According to the Plaintiff, the Suit Property belongs him. The Plaintiff further claims entitlement to EXABCG2G1GYF. The Petitioner is to prove entitlement to the entire extent of EXABCG2G1GYF. As discussed earlier, no documents are produced showing the entitlement of the Plaintiff to the entire extent of EXABCG2G1GYF. By a perusal of the Commissioner's Plan - Ex.C-3, it is clear that the portion EXABCG2G1GYF covers the Plaintiff's house, Plaintiff's vacant site and the part of Defendant's house and also the latrine, including the demarcated fence line. As discussed earlier, no documents are produced showing the entitlement of the Plaintiff to the entire extent of EXABCG2G1GYF. By a perusal of the Commissioner's Plan - Ex.C-3, it is clear that the portion EXABCG2G1GYF covers the Plaintiff's house, Plaintiff's vacant site and the part of Defendant's house and also the latrine, including the demarcated fence line. Having sought for declaration of ABCD portion, the Plaintiff ought to have established his entitlement to the portion. No document has been forthcoming to show the entitlement of the Plaintiff to an extent of East West - 45 Thachumuzham i.e. EXABCG2G1GYF. 20.The Plaintiff's case is weakened by the discrepancy in the measurement, as is clear from the following: East West North South According to the Plaintiffs 45 Thachumuzham 30 Thachumuzham As per Commissioner's } 59 ft Northern side 61 ft Western side Report + Plan } 53 ft Southern side As Per Ex.A-3 – Patta 13.0 m - Northern Side 16.8 mtrs Eastern Side 14.4 m – Southern Side 15.6 mtrs Western Side 21.The above discrepancy in the measurement is not at all explained. The discrepancies are irreconcilable. The trial Court has rightly taken note of the discrepancies and found that the Plaintiff has not proved his entitlement on the Eastern Side of the fence. The lower Appellate Court has neither gone into the discrepancy in the measurement nor the lack of evidence; and without properly appreciating the same, the First Appellate Court committed a serious and substantial error that the Plaintiff owns the property on the Eastern side of the live fence. 22.The yard stick of measurement referred by the Plaintiff and the suit documents are also not made clear. As noted earlier, the Plaintiff claims East West - 45 Thachumuzham and North South - 30 Thachumuzham. It is stated that one Thachumuzham is the length between the shoulder and the finger tip of a person. It is further submitted that one jathiadi is 12 inches and one Kaladi is equal to 9 inches. No authentication has been produced showing the above interpretation and yard stick of measurement. There is no dispute that D-1 has constructed a house long back. In paragraph 6 of the plaint, the Plaintiff has alleged that "in the family partition of D-1, the property was allotted to D-1 and that D-1 had constructed the house". No authentication has been produced showing the above interpretation and yard stick of measurement. There is no dispute that D-1 has constructed a house long back. In paragraph 6 of the plaint, the Plaintiff has alleged that "in the family partition of D-1, the property was allotted to D-1 and that D-1 had constructed the house". "mjd;nghpy; ,e;j 1k; gpujpthjpa[k; nkw;brhd;dgo nfhh;l;L jPh;g;g[g;go fpilj;j fpHnky; 10 mo ,lj;jpYk; mjw;Ff; fpHf;nfa[s;s ,lj;jpYk; tlg[wj;jpy; tPLfl;lodhh;/" 23.According to the Plaintiff, about six months prior to the suit, when the Petitioner was away from the village, the Defendants have encroached into the Plaintiff's property to an extent of East West – 10ft; North South - 16ft and put up construction. In the Plaint Schedule, the Suit Property is described as – East West - 10ft; North South - 16ft, wherein the Plaintiff is alleged to have put up a flimsy shed. At the time of visit, the Commissioner has noted the Defendant's house forming one integral part. In the Report, the Commissioner has noted a new tiled shed in the portion D D-1 D-2 D-3 which the Commissioner has opined as a recently built one. The alleged encroached portion ABCD forms integral part of the Defendant's house, both on the Northern side and on the Southern side. The contention of the Plaintiff that the Defendants have encroached into the portion ABCD and put up construction is falsified by the striking physical features. 24.The Plaintiff has sought for declaration and vacant possession, alternatively for removal of the flimsy shed put up. Newly built up portion is D D-1 D-2 D-3. But according to the Plaintiff, the encroached portion is ABCD. The case of the Plaintiff is totally contradictory to the actual existence. Having sought for declaration and possession and also for mandatory injunction for the removal of the built up portion, heavy burden lies upon the Plaintiff to prove - (i)his title to the property; and; (ii)the alleged encroachment by the Defendant; 25.In between the Plaintiff's side and the Defendant's property, there is a well demarcated line XY – live fence, on the line of which there is Margosa trees (M) and J- Murungai Tree. On the Eastern side of the fence, including the encroached portion, forms the integral part of the Defendant's property and in possession, as is seen from the following features: - XY .... Demarcating Boundary Line / Fence ABCD .... On the Eastern side of the fence, including the encroached portion, forms the integral part of the Defendant's property and in possession, as is seen from the following features: - XY .... Demarcating Boundary Line / Fence ABCD .... A part of Defendant's house. ABCD 10ft x 19ft .... Cattle Tub .... Shown as K .... Temporary latrine with Palmyarah leaf fence. While the entire stretch forms integral part of the Defendant's property, it is quite unacceptable that the Defendants have encroached ABCD and put up construction during the Plaintiff's absence from the village. 26.According to the Plaintiff, the encroached portion forms part of the property, for which already delivery was effected in E.P.No.278/1966, under Ex.A-2. Absolutely, there is no material correlating the present Suit Property with the property said to have been delivered under Ex.A-2. As discussed earlier, in the Delivery Proceedings in E.P.No.278 of 1966, a property measuring East West - 20ft and North South - 50ft is said to have been effected delivery. In O.S.No.327/1960 and A.S.No.232/1964, the Plaintiff and his father were found entitled to M M1 P2 P3 as per the Commissioner's Report marked thereon as Ex.C-2. In A.S.No.232/1964, the learned District Judge has found as: - "The learned District Munsif was thus right in concluding that in regard to the plot marked M M1 P1 P in Ex.C-2, the Plaintiff had title and that they lost their title by reason of the adverse possession or a smaller portion within it marked as P P1 P2 P3 by the Defendant, and that they are entitled to recover possession of the plot marked M M1 P2 P3 in the second plan of the Commissioner marked as Ex.C-2. 8.It has also been made out that the Defendant trespassed upon the plot Marked M M1 P2 P3 as stated in the plaint. The points are found accordingly." (vide Ex.A-1). Neither Ex.C-2 - Commissioner's Report in O.S.No.327/1960 nor the Decree in O.S.No.327/1960 have been produced showing the location of M M1 P2 P3 and the small portion claimed by the Defendant - Vellaikoothan Servai. In the absence of showing the property covered under O.S.No.327/1960 (M M1 P2 P3 – in Ex.C-2) in the earlier proceedings, the Plaintiff is not entitled to base his claim upon Exs.A-1 and A-2. In the absence of showing the property covered under O.S.No.327/1960 (M M1 P2 P3 – in Ex.C-2) in the earlier proceedings, the Plaintiff is not entitled to base his claim upon Exs.A-1 and A-2. In the absence of any material showing that the present Suit Property is the same as the property in O.S.No.327/1960, the First Appellate Court erred in finding that the Defendants are barred by Resjudicata in view of the earlier proceedings. 27.For the first time in the First Appellate Court, a plea was raised that the Defendants are barred by Resjudicata from making a claim to the Suit Property in view of the earlier findings in O.S.No.327/1960 and A.S.No.232/ 1964. The essential conditions of Resjudicata are - (i)Identity of the matter in issue – the matter directly and substantially in issue in the subsequent suit must have been the same matter which was directly and substantially in issue in the former suit either actually or constructually. (Explanation III and IV). (ii)Identity of parties :- That is, a former suit must have been between the same parties under whom they, or any of them claim (Explanation VI). (iii)Same title :- The parties in subsequent suit must have been litigated in the same title in the former suit. (iv)Concurrence of jurisdiction :- Court which decided the former suit must have been competent to try the subsequent suit. (v)Final decision:- The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided in the further suit. 28.Thus, it is clear that the Principle of Resjudicata applies not only to the actual decision in the case but also the facts and grounds pleaded by the parties. Anything which was admitted and raised which would be bound to the decision of the earlier suit is also a part of Resjudicata. Hence the plea of Resjudicata being a mixed question of law and fact, ought to have been pleaded and raised in the pleadings and evidence ought to have been adduced during the trial. The lower Appellate Court erred in permitting the Plaintiff to raise the plea of Resjudicata for the first time in the First Appellate Court. Elaborately considering the plea of Resjudicata in AIR 1960 SC 941 [Satyadhyan Ghosal and othes Vs. The lower Appellate Court erred in permitting the Plaintiff to raise the plea of Resjudicata for the first time in the First Appellate Court. Elaborately considering the plea of Resjudicata in AIR 1960 SC 941 [Satyadhyan Ghosal and othes Vs. Deorajin Debi and another] the Supreme Court has held: "7.The principle of Resjudicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter – whether on a question of fact or a question of law – has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher Court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in S.11 of the Code of Civil Procedure; but even where S.11 does not apply, the principle of Resjudicata has been applied by Courts for the purpose of achieving finality in litigation. The result of this is that the original Court as well as any higher Court must in any future litigation proceed on the basis that the previous decision was correct ......" 29.To raise the plea of Resjudicata, it is to be firstly established that the subject matter of the earlier suit is the subject matter of the present suit and that the Defendants are precluded from claiming any title to the Suit Property. As discussed earlier, no documents have been produced showing that the present Suit Property measuring East West - 10ft; North South – 16ft, forms part of East West – 20ft; North South – 50ft, said to have been delivered under Ex.A-2 – Delivery Receipt. Neither the Commissioner's Report in the earlier proceeding nor the Decree in O.S.No.327/1960 have been produced showing the exact location of the property for which delivery was effected. Only the Judgment of the Appellate Court in A.S.No.232 of 1964 has been produced. Findings of the Appellate Court in A.S.No.234/1964 extracted in paragraph No.27 cannot be correlated to the present Suit Property. The trial Court has rightly found that the Plaintiff has not proved the title. Only the Judgment of the Appellate Court in A.S.No.232 of 1964 has been produced. Findings of the Appellate Court in A.S.No.234/1964 extracted in paragraph No.27 cannot be correlated to the present Suit Property. The trial Court has rightly found that the Plaintiff has not proved the title. 30.While so, for the first time in the First Appellate Court, the Plaintiff has raised the plea of Resjudicata. As noted earlier, Resjudicata is a mixed question of law and facts, which is to be subsequently pleaded. The plea must be properly raised in the pleadings or in the issues at the trial stage, even in the trial Court. The issue in conflict need not necessarily arise from the pleadings. When the parties adduce evidence, the Plaintiff could have prayed the Court to frame the issue of Resjudicata. But that was not to be so. When the plea of Resjudicata was neither pleaded nor framed as an issue, the Appellate Court was not right in permitting the Plaintiff to urge the plea of Resjudicata for the first time in the First Appellate Court. 31.Accordingly, the substantial question of law is answered in favour of the Appellants/Defendants. 32.Contending that the plea of Resjudicata cannot be raised for the first time in the first Appellate Court, the learned counsel for the appellant has also relied upon AIR 1984 Patna 316 [Ran Nagendra Tiwary and others Vs.Jagdamba Ojhai and others], in which, it was held: "12.To invoke the doctrine of Resjudicata, the ingredients contemplated by Section 11 of the Civil P.C. should be satisfied. The Court must see whether the elements that constitute Resjudicata are present in a given case, which means investigation into the facts bearing upon the several aspects contemplated by that section. It is not a pure question of law which could be debated at any stage. It is well settled that where the plea of Resjudicata was not put forward in the plaint but forms the subject of any issue and could not even be debated at the trial stage, the case was prima facie excluded from the operation of the provisions embodied in S.11 of the CPC. In the instant case, the point of Resjudicata was not raised in the trial Court. No issue was framed and naturally there was no decision on the question of Resjudicata. This point was raised for the first time before the Court of Appeal below. In the instant case, the point of Resjudicata was not raised in the trial Court. No issue was framed and naturally there was no decision on the question of Resjudicata. This point was raised for the first time before the Court of Appeal below. The Court of Appeal below, it is true, has gone into this question but in my opinion wrongly." The above observation squarely applies to the case in hand. As discussed earlier, the present Suit Property is not proved to the same property in the earlier proceedings. Had the plea been raised in the trial Court, the Defendant could have demonstrated that the subject matter in both the suits are different. 33.The learned counsel for the Plaintiffs/Respondents has relied upon a number of decisions regarding the scope and the applicability of the plea of Resjudicata: - 1.AIR 2001 Calcutta 16; 2. AIR 2004 SC 2186 ; 3.2003(Vol.3) C.T.C. 671; 4.1997 (Vol.2) CTC 489 In substance, these Judgments go into the essential requirements of the Doctrine of Resjudicata which means the issue has become final and should not be allowed to be re-agitated. In the case in hand, no such plea was specifically pleaded nor the issue was raised before the trial Court and hence the applicability of the principles laid down in those decisions cannot be applicable to the case in hand. 34.Case of the Defendants is that they have put up their house even fifteen years before the filing of the suit and are in long enjoyment of the property on the Eastern side of XY fence and the Defendants have raised a plea of long possession and adverse possession in their Written Statement. DW-1 has also stated that House Tax is levied in the name of D-2 and electricity connection is also in the name of D-2 and that they are paying the electricity consumption charges. This is probablised by the circumstances that after the execution proceedings in E.P.No.278/1966, for nearly three decades, there was no dispute between the parties. In the year 1991, there seems to be a scheme for grant of patta for the village Natham. Both for the Plaintiff as well as for the Defendants, draft patta was issued, stating that the enquiry would be taken up on 20.12.1991. As per Exs.A-3 and B-2, it was proposed to issue patta to the Plaintiffs and Defendants as under: - Plaintiff - Somaiya ..... Both for the Plaintiff as well as for the Defendants, draft patta was issued, stating that the enquiry would be taken up on 20.12.1991. As per Exs.A-3 and B-2, it was proposed to issue patta to the Plaintiffs and Defendants as under: - Plaintiff - Somaiya ..... 255/11 - East West - 13.0 meters on the Northern Side North South - 15.6 meters on the West 16.8 meters on the East 1st Defendant ..... 255/12 - East West - 7.00 meters North 7.8 meters South North South - 18.6 meters Western Side - 18.8 meters Eastern Side The suit was filed on 23.04.1991, which is few months prior to the holding of enquiry and the issuance of patta. 35.Case of the Defendants that they are in long possession and enjoyment of the Suit Property is strengthened by the striking physical features. As noted earlier, there is well demarcated fence along XY line with the well grown trees. The alleged encroached portion ABCD is on the Eastern side of the fence forming integral part of the property in possession of the Defendant. The newly built portion is DD-1 D-2 D-3. There is no temporary shed/flimsy shed, as alleged by the Plaintiff. The Plaintiff has alleged that about six months prior to the filing of the suit, Defendants have encroached and put up their shed. The Plaintiff has neither pleaded nor stated about the exact time of encroachment. The Plaintiff has not properly explained his absence for a long period of six months. 36.Pointing out the discrepancy and the lack of evidence by well-merited reasoning, the trial Court has dismissed the suit. Without going into the in-depth and merits of the contentions, the lower Appellate Court erred in allowing the Plaintiff to raise the plea of Resjudicata for the first time in the first Appellate Court. Having permitted the Plaintiff to raise that plea, the lower Appellate Court ought to have considered whether the essential conditions of the plea of Resjudicata was satisfied. Demonstrably, the subject matter in the present suit is not correlated to the subject matter in the earlier suit. The lower Appellate Court committed a serious and substantial error in reversing the Judgment of the trial Court. The reasoning and finding of the lower Appellate Court are to be set aside, restoring the Judgment and Decree of the trial Court and this second appeal is to be allowed. The lower Appellate Court committed a serious and substantial error in reversing the Judgment of the trial Court. The reasoning and finding of the lower Appellate Court are to be set aside, restoring the Judgment and Decree of the trial Court and this second appeal is to be allowed. 37.For the foregoing reasons, this second appeal is allowed, setting aside the Judgment and Decree of the First Appellate Court – District Court, Sivaganga made in A.S.No.33/1996 (dt.16.07.1996). The Judgment and Decree of the District Munsif, Manamadurai in O.S.No.66/1993 dated 25.01.1996 is confirmed. In the circumstances of the case, there is no order as to costs.