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2009 DIGILAW 5122 (MAD)

Kannan v. Uma @ Uma Maheswari

2009-11-25

G.M.AKBAR ALI

body2009
Judgment :- The defendants 5, 6, 8, 9, 11 are the appellants. The appeal is preferred against the judgment and decree dated 29.09.2006, passed in A.S.No.16 of 2000, on the file of the Additional District-cum-Fast Track Court, Ramanathapuram, reversing the judgment and decree, dated 26.11.1999, passed in O.S.No.431 of 1994, on the file of the learned District Munsif, Paramakudi. The suit is filed for declaration and injunction. 2. The brief facts of the case are as follows:- The suit property originally belonged to one Seethalakshmi Ammal and Guruvammal. After the death of Seethalakshmi Ammal, her legal heirs one Soundarapandian and Meenakshi became entitled to the property and they were enjoying the property along with the said Guruvammal. The said Soundarapandian and Meenakshi executed a sale deed in favour of one Pulikutti Servai and the said Pulikutti Servai was in possession and enjoyment of the property. On 12.05.1987, the said Pulikutti Servai died leaving behind one Balu, Mallika, Rajammal and the defendants 1 & 2 as his legal heirs. After the death of Pulikutti Servai, there was an oral family partition among the children of Pulikutti Servai in the year 1987. The suit property fell into the share of Balu. The said Balu died on 26.12.1988 leaving behind the plaintiffs as legal heirs. The first plaintiff is the wife and the second plaintiff is the daughter. However, the first plaintiff died pending suit and the second plaintiff is the only surviving legal heir. As the defendants are claiming some title over the property, the suit is filed for declaration and injunction. 3. The suit was resisted by the defendants 4 to 11, denying the right and title of the plaintiffs over the suit property, as in the plaint. The defendants would submit that the suit property originally belonged to one Shanmugam Chettiar. The said Shanmugam Chettiar for himself and on behalf of his minor son, sold the property to one Sundarrajan Asari by a sale deed, dated 25.01.1957. The said Sundarrajan Asari was enjoying the said property and he had mortgaged the property on 13.06.1966 to one Kadharmaideen and the mortgage was redeemed on 05.12.1974. After the death of the said Sundarrajan Asari, the defendants 4 to 10, who are the children and the first defendant, being the wife became entitled to the property. The said Sundarrajan Asari was enjoying the said property and he had mortgaged the property on 13.06.1966 to one Kadharmaideen and the mortgage was redeemed on 05.12.1974. After the death of the said Sundarrajan Asari, the defendants 4 to 10, who are the children and the first defendant, being the wife became entitled to the property. The defendants would further state that since the said Pulikutti Servai was claiming title over the property, they filed a suit in O.S.No.150 of 1984 before the District Munsif Court, Manamadurai, and in that suit, the said Pulikutti Servai also put forth his claim as to the right of the property through Guruvammal and others. The suit was initially dismissed and the defendants preferred an appeal in A.S.No.45 of 1988. Pending appeal, the said Pulikutti Servai died and his legal heirs were added as parties. The said appeal was allowed in favour of the defendants, upholding their title and the same was also confirmed in S.A.No.882 of 1992 and the legal heirs of Pulikutti Servai preferred a Special Leave Petition in S.L.P.No.12051 of 1993 and the same was also dismissed, confirming the judgment and decree of the Sub-Court, Devakottai. Therefore, the defendants title has been confirmed as against the claim of Pulikutti Servai. The present plaintiff, who claims the same title through Pulikutti Servai, is bound by the decree in O.S.No.150 of 1984 and the suit is barred by res judicata. 4. On the above pleadings, the parties went for trial and on perusal of the various documents and the decree in O.S.No.150 of 1984, the trial Court accepted that the suit is barred by res judicata and thereby, dismissed the suit. The plaintiffs have preferred an appeal before the learned Additional District Judge, Fast Track Court, Ramanathapuram. The first appellate Court found that pending the appeal in A.S.No.45 of 1988, the said Pulikutti Servai died and the legal heirs were impleaded as parties. The plaintiffs have preferred an appeal before the learned Additional District Judge, Fast Track Court, Ramanathapuram. The first appellate Court found that pending the appeal in A.S.No.45 of 1988, the said Pulikutti Servai died and the legal heirs were impleaded as parties. However, the plaintiffs father viz., Balu also died pending the said appeal and his legal heirs were not impleaded as parties and the present plaintiff, not being a party in the earlier proceedings, is not bound by the decree and therefore, the suit filed by the plaintiffs is not hit by the principle of res judicata and therefore, allowed the appeal, reversing the judgment and decree, dated 26.11.1999 passed in O.S.No.431 of 1994 on the file of District Munsif Court, Paramakudi. Against which, the defendants 4, 5, 6, 8, 9 and 11 preferred the present appeal on the following grounds:- (1) The lower appellate Court failed to see that the present suit is hit by res judicata. (2) The lower appellate Court erred in holding that since in the previous suit, Balus (one of the legal heirs of Pulikutti servai) legal heirs were not impleaded and hence the previous judgment would not operate as res judicata. (3) The lower appellate court ought to have seen that an affidavit was filed by Pulikuttis legal heirs that Pulikutti had executed a Will in favour of his daughter Susila and that no other legal heir need to be impleaded. (4) The lower appellate court overlooked that the issue in the previous suit and the present suit is one and the same that the plaintiffs claiming through Pulikutti are bound by the judgment in O.S.No.150 of 1984. 5. On admission, this Court has framed the following substantial questions of law:- a. Has not the lower appellate Court overlooked the title of appellant which had been upheld in O.S.No.150 of 1984, to which the plaintiffs predecessor in title was a party? b. Whether the lower appellate court had misconstrued the concept of res judicata resulting in perverse findings? c. Whether the judgment of the lower appellate Court is vitiated for non compliance of order-41, Rule-31 of C.P.C.?" 6. Mr.R.Subramanian, the learned counsel for the appellant would submit that the first appellate court has misconstrued the principles of res judicata. b. Whether the lower appellate court had misconstrued the concept of res judicata resulting in perverse findings? c. Whether the judgment of the lower appellate Court is vitiated for non compliance of order-41, Rule-31 of C.P.C.?" 6. Mr.R.Subramanian, the learned counsel for the appellant would submit that the first appellate court has misconstrued the principles of res judicata. The learned counsel also pointed out that in the previous suit, the title of the Pulikutti Servai was challenged and the appellate Court found that the Pulikutti Servai has no title, which was confirmed by the High Court and also by the Honble Apex Court. The learned counsel also pointed out that the first appellate court had erred in holding that in the previous suit, the legal heirs of the deceased Balu were not impleaded and hence, the previous judgment is not binding on them. The learned counsel also pointed out that the plaintiffs are claiming title only through the said Pulikutti Servai and therefore,the suit is barred by the principle of res judicata. 7. The learned counsel for the appellant invited the attention of this Court to the Division Bench judgment of this Court in C.Arumugathan Vs. S.Muthusamy & others reported in ( 1991 (1) L.W. 63 ) wherein it has been held as follows:- "In the instance case it is seen that the earlier suit was filed by the first defendant who was admittedly managing the joint family at the time of filing of the suit and he was also putting forth the same title. The mere fact that he has not specifically stated that he was suing in his capacity as manager will not in any way take away the effect of the question of res judicata in view of the circumstances of the case on the ground that the plaintiffs were not parties to the earlier proceedings." 8. The learned counsel, next, invited the attention of this Court to the judgment of the Honble Supreme Court in Sulochana Amma Vs. Narayanan Nair reported in (1994 (1) L.W.42) wherein it has been held as follows:- When the same issue is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit the decree in the injunctions suit equally operates as res judicata. Narayanan Nair reported in (1994 (1) L.W.42) wherein it has been held as follows:- When the same issue is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit the decree in the injunctions suit equally operates as res judicata. In this case, when the right and interest of the respondent were questioned in his suit against K, the validity of the settlement deed and the terms thereof were gone into. The civil court found that K, acquired life-estate under the settlement deed executed by his wife conferring vested remainder in the respondent and on its basis the respondent was declared entitled to an injunction against K who was prohibited not only from committing acts of waste, but also from alienating the properties in favour of third parties. The later suit of injunction to which the appellant was a party also binds the appellant." 9. Mr.V.Sitharanjandas, learned counsel for the respondents/plaintiffs would submit that after the death of the said Pulikutti Servai, the father of the plaintiffs viz., Balu, was impleaded as a party in the appeal before the Sub-Court, Devakottai. Pending appal, he died leaving behind the plaintiffs as legal heirs. The appellants therein failed to implead the Legal Representatives of the said Balu and therefore, they are not the parties to the proceedings. Whatever being the decision rendered in that appeal could not bind on the plaintiffs as they are not parties to the suit. The learned counsel also pointed out that the plaintiffs are not claiming any title through Pulikutti Servai. The learned counsel further pointed out that after the death of the Pulikutti Servai, the children of Pulikutti Servai became entitled to the property and in a partition, the said Balu was allotted with the suit property. Neither the said Balu nor his legal heirs were parties to the former suit and therefore, the present suit is not barred by res judicata. 10. The learned counsel for the respondent relied on the judgment of Andhra Pradesh High Court in J.Kotamma Vs.P.Simbachalam reported in (AIR 1969 ANDHRA PRADESH 76), wherein it has been held as follows:- "The expression same parties is self explanatory. It means the same persons as in the former suit who were parties to that suit. 10. The learned counsel for the respondent relied on the judgment of Andhra Pradesh High Court in J.Kotamma Vs.P.Simbachalam reported in (AIR 1969 ANDHRA PRADESH 76), wherein it has been held as follows:- "The expression same parties is self explanatory. It means the same persons as in the former suit who were parties to that suit. For the purpose of this section, a party is a person who appears on the record at the time of the decision. In case his name is struck off at any stage of the suit or he is discharged from the suit or his name has been introduced by fraud or without knowledge or he was a minor on record unrepresented by a guardian, he cannot be said to be a party to the litigation. A person merely interested in the litigation cannot be said to be a party to the suit. Such a person is neither bound to make himself a party nor can he be found by the result of the litigation." 11. The learned counsel relied on the judgment of Calcutta High Court in Mira Chatterjee Vs. Sunil Kumar Chatterjee reported in (AIR 1993 CALCUTTA 333), wherein it has been held as follows:- "Therefore, in view of the subsequent event which had occurred during the pendency of the appeal before the Supreme Court, it cannot be said that in view of Section 11 Explanation IV of the Code of Civil Procedure, such question cannot now be raised in the present suit. Accordingly, we do not find any substance in the argument of Mr.Ghosh with regard to the question of applicability of Section 11 Explanation iv of the Code of Civil procedure in the present suit. It is now well settled that Section 11 of the Code of Civil Procedure would not be attracted as a party is now bound in law to put forward a claim in a suit on the basis of a right acquired by him during the pendency of the suit". 12. It is not in dispute that the present suit property was the subject matter in O.S.No.150 of 1984. The defendants 4 to 11 were the plaintiffs in the earlier suit and the said Pulikutti Servai was the defendant. The plaintiffs therein have traced their title to one Sundarrajan Asari by a sale deed, dated 25.01.1957, who was their predecessor in title. The defendants 4 to 11 were the plaintiffs in the earlier suit and the said Pulikutti Servai was the defendant. The plaintiffs therein have traced their title to one Sundarrajan Asari by a sale deed, dated 25.01.1957, who was their predecessor in title. The defendant therein traced his title to one Guruvammal and Seethalakshmi Ammal under a sale deed, dated 06.05.1983. The issue before the Court was whether the suit property belonged to the plaintiff or whether the suit property belonged to the defendants. 13. Ex.B3 is the judgment and decree passed in O.S.No.150 of 1984. In Appeal in A.S.No.45 of 1988, the issue was the same, including the issue as to the possession of the suit property. However, pending the said appeal, the said Pulikutti Servai and his son Balu died. Hence, the appeal was decided in the presence of the other legal heirs of the said Pulikutti Servai. The issue was decided in favour of the plaintiffs therein i.e. against the legal heirs of the said Pulikutti Servai. The title of the plaintiffs therein was upheld and the title as put forth by the said Pulikutti Servai was negatived. 14. In the present suit, the plaintiff, who is the daughter of the said Balu, would claim that after the death of the said Pulikutti Servai, the children of the said Pulikutti Servai became entitled to the property and by an oral partition in the year 1987, the property fell into the share of the said Balu and he died on 26.12.1988. Ex.B6 is the memo filed by the legal representatives of the Pulikutti Servai, after his death. It is stated that the said Pulikutti Servai had executed a Will dated 24.04.1987, which came into force on 01.05.1987 i.e on the death of the said Pulikutti Servai and as per the Will one Susila, the 5th defendant therein, was entitled to the property and therefore, the other defendants have stated that they have no objection to declare the said Susila as the legal heir to the said Pulikutti Servar. This memo was filed after the death of the said Balu. 15. Though there is a claim by the plaintiff that after the death of Pulikutti Servai, there was an oral partition among the sharers and the suit property fell into the share of Balu, the said contention was undermined by Ex.B6. This memo was filed after the death of the said Balu. 15. Though there is a claim by the plaintiff that after the death of Pulikutti Servai, there was an oral partition among the sharers and the suit property fell into the share of Balu, the said contention was undermined by Ex.B6. Therefore, as it stands, the plaintiffs can utmost trace their title only through Pulikutti Servai and after the death of Pulikutti Servai, the estate of Pulikutti Servai was sufficiently represented by the other legal heirs. 16. Section 11 C.P.C., reads as follows:- "11.Res judicata - No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. Explanation I: The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II: ...... Explanation III: ...... Explanation IV : ...... Explanation V : ...... Explanation VI: Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purpose of this section, be deemed to have been refused." 17. Explanation VI to Section 11 of Civil Procedure Code, contemplates that where persons litigate in respect of a public right or a private right claim in common for themselves and others, all persons interested in such right shall for the purpose of this Section be deemed to claim under the persons so litigating. The phrase between the same parties, or between parties under whom they or any of them claim, litigating under the same title is further explained and identifies the persons litigate in respect of a public right or a private right claim in common for themselves and others. 18. In C.Arumugathan Vs. The phrase between the same parties, or between parties under whom they or any of them claim, litigating under the same title is further explained and identifies the persons litigate in respect of a public right or a private right claim in common for themselves and others. 18. In C.Arumugathan Vs. S.Muthusamy & others reported in ( 1991 (1) L.W. 63 ) it has been held that : "In the instance case it is seen that the earlier suit was filed by the first defendant who was admittedly managing the joint family at the time of filing of the suit and he was also putting forth the same title. The mere fact that he has not specifically stated that he was suing in his capacity as manager will not in any way take away the effect of the question of res judicata in view of the circumstances of the case on the ground that the plaintiffs were not parties to the earlier proceedings." 19. In the present case the estate of the said Pulikutti Servai was sufficiently represented by his legal heirs. As stated earlier the claim of the plaintiff that after his death there was a partition and the suit property fell to the share of Balu was undermined by their own conduct by filing a memo Ex. B6. Moreover , the title is being traced only to the said Pulikutty Servai. 20. The principle of res judicata is attracted when issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title. In the present case, the issue in the former suit and the issue in the present suit namely whether the said Pulikutti Servai is entitled to the suit property or the defendants herein are entitled to the suit property, are the same. When the same issue is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit, the later suit is barred under the principles of res judicata. Needless to say that the plaintiff is claiming the title to their privy namely Pulikutti Servai. When the same issue is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit, the later suit is barred under the principles of res judicata. Needless to say that the plaintiff is claiming the title to their privy namely Pulikutti Servai. At the risk of repetition it is again stressed that the estate of Pulikutti servai was sufficiently represented by the legal heirs in the earlier suit. 21. Therefore, the first appellate Court is wrong in holding that the plaintiffs are not the parties to the earlier suit and the judgment is not binding on them. The plaintiffs are tracing their title only through Pulikutti Servai, whose title has been negatived in the earlier suit in the presence of sufficiently represented legal heirs and therefore, Explanation VI to Section 11 of C.P.C. attracts and the suit is barred by res judicata. Therefore, the decree and judgment of the first appellate Court is liable to be set aside and accordingly set aside. The substantial questions of law are answered accordingly. 22. In the result, the second appeal is allowed by setting aside the judgment and decree in A.S.No.16 of 2000 dated 29.09.2006 on the file of the Additional District-cum-Fast Track Court, Ramanathapuram and confirming the judgment and decree dated 26.11.1999 passed in O.S.No.431 of 1994 on the file of District Munsif Court, Paramakudi. No costs. Consequently connected miscellaneous petition is closed.