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2010 DIGILAW 109 (MAD)

Kesavan v. Ellammal

2010-01-08

S.TAMILVANAN

body2010
J U D G M E N T:-This Second Appeal has been preferred against the Judgment and Decree, dated 04.10.1993 made in A.S.No.61 of 1991 on the file of the Subordinate Judge, Kancheepuram, reversing the Judgment and Decree, dated 14.11.1990 passed in O.S.No.306 of 1982 on the file of the Additional District Munsif Court, Kancheepuram. 2. The appellants herein were the defendants 1, 3 and 4 in the suit and the suit was filed by the respondents 1 and 2 herein against the appellants herein and Anbalagan, the third respondent herein, seeking declaration of title and consequential permanent injunction restraining the appellants / defendants from interfering with the peaceful possession and enjoyment of the respondents 1 & 2 / plaintiffs, in the schedule mentioned property of the plaint. 3. After the trial, the suit was dismissed by the trial court with costs. Aggrieved by which, appeal was preferred by the respondents 1 & 2 herein. The appellate court allowed the appeal and decreed the suit as prayed for, by granting declaration of title and permanent injunction. Against which, the Second Appeal has been preferred by the defendants 1, 3 and 4. 4. This Second Appeal has been admitted on the following Substantial Question of Law raised by the appellants: "Whether the Judgment of the first appellate court is legally sustainable on the ground that it has failed to note the present suit filed by the respondents 1 and 2 is barred by principles of res judicata, since the earlier suit filed in O.S.No.79 of 1977 by them was dismissed ?" 5. It is an admitted fact that one Murugappa Mudaliar and Rajamanicka Mudaliar of Kancheepuram were brothers and both of them were not alive on the date of filing of the suit and there was earlier partition between the said brothers. It is an admitted fact that one Murugappa Mudaliar and Rajamanicka Mudaliar of Kancheepuram were brothers and both of them were not alive on the date of filing of the suit and there was earlier partition between the said brothers. According to the plaintiffs, who are the respondents 1 and 2 herein, the first respondent, Ellammal is the wife of the deceased Murugappa Mudaliar and the second respondent Vedavalli Ammal is the daughter of the said Murugappa Mudaliar, born through the first respondent and both are the legal heirs of Murugappa Mudaliar and as such they are entitled to the suit property, however, the appellants and the third respondent herein, as legal heirs of Rajamanicka Mudaliar were causing interference with the peaceful possession and enjoyment of the suit property by the respondents 1 and 2 / plaintiffs, hence, the suit was filed by them, seeking declaration of title and consequential permanent injunction against the appellants and third respondent herein. 6. Mr.S.Balasubramanian, learned counsel appearing for the appellants in the second appeal contended that the respondents 1 and 2 herein are not the wife and daughter respectively of late Murugappa Mudaliar as claimed by them. According to the appellants, the first respondent Ellammal was the wife of one Sundara Mudaliar and she has not established that she is the legally wedded wife and the second respondent is the daughter of the late Murugappa Mudaliar, born through her and therefore, they cannot be construed as legal heirs of Murugappa Mudaliar. Learned counsel appearing for the appellants further submitted that Murugappa Mudaliar died without any Class I legal heir, as per Hindu Succession Act, hence, the appellants 1 & 2 and the third respondent, being the children and 3rd appellant as wife of Rajamanicka Mudaliar, brother of Murugappa Mudaliar are entitled to the suit property as class II legal heirs, however, the appellate court reversed the Judgment of the trial court and granted decree in favour of the respondents 1 & 2 / plaintiffs. 7. Per contra, Mr.S.D.N.Vimalanathan, learned counsel appearing for the respondents 1 and 2 / plaintiffs submitted that there is direct evidence to show that the respondents 1 and 2 respectively are wife and daughter of late Murugappa Mudaliar. 7. Per contra, Mr.S.D.N.Vimalanathan, learned counsel appearing for the respondents 1 and 2 / plaintiffs submitted that there is direct evidence to show that the respondents 1 and 2 respectively are wife and daughter of late Murugappa Mudaliar. According to him, there is a clear admission made by the first appellant herein, when he was examined as D.W.1 before the trial court and the other witness, D.W.2 has also adduced similar evidence before the trial court admitting the said relationship of the respondents 1 & 2 with late Murugappa Mudaliar. Being the legal heirs of Murugappa Mudaliar, the respondents 1 & 2 are in possession and enjoyment of the property for number of years and they are entitled to a decree as prayed in the plaint, for declaration of title and consequential injunction in respect of the suit property. The learned counsel for the respondents 1 & 2 further submitted that the suit property is in the possession and enjoyment of the respondents 1 & 2 herein and that there is no substantial question of law raised by the appellants herein and hence, the Second Appeal is liable to be dismissed. 8. It has been admitted by both the learned counsel that late Murugappa Mudaliar owned the suit property and he died in the year 1955. The Death Certificate of Murugappa Mudaliar has been marked as Ex.B.5. The first respondent, who was examined as P.W.1 has deposed that she is the legally wedded wife of late Murugappa Mudaliar and the second respondent is his daughter born through the first respondent. According to her, the appellants 1 and 2 and the third respondent herein are the sons and the third appellant is the widow of the said Rajamanicka Mudaliar, younger brother of late Murugappa Mudaliar. As there had been partition between Murugappa Mudaliar and his brother Rajamanicka Mudaliar, Murugappa Mudaliar was in possession and enjoyment of the property as the absolute owner of the suit property, hence, the appellants and the third respondent have no right in the suit property. Being his legal heirs, the respondents 1 and 2 inherited the suit property, that was left by Murugappa Mudaliar. The defence raised by the appellants is that the respondents 1 and 2 are not the wife and daughter respectively of late Murugappa Mudaliar. Being his legal heirs, the respondents 1 and 2 inherited the suit property, that was left by Murugappa Mudaliar. The defence raised by the appellants is that the respondents 1 and 2 are not the wife and daughter respectively of late Murugappa Mudaliar. The first appellant, who was examined as D.W.1 has gone to the extent of saying that he does not know who are the respondents 1 & 2 / plaintiffs, however, he has admitted the fact that they are in possession and enjoyment of the suit property, that was left by Murugappa Mudaliar and also paying property tax to the municipal authorities for the same for number of years. 9. The respondents 1 and 2 as plaintiffs have marked Exs.A.1 to A.34, in order to establish their suit claim. It is not in dispute that Ex.A.1 is the copy of the partition deed, dated 22.07.1948 relating to Murugappa Mudaliar and his brother Rajamanicka Mudaliar. Ex.A.2 is the birth extract of Nagammal obtained from Kancheepuram Municipality, wherein Nagammal's father is stated as Murugappa Mudaliar and the mother of the child is stated as Ellammal, the first respondent herein. Ex.A.5 is a tax receipt dated 25.02.1976 issued in the joint name of Ellammal, the first respondent herein and the appellants and Anbalagan, the third respondent herein. Ex.A.6 is another tax receipt issued by Kancheepuram Municipality for the year 1979-80, wherein the name of the first respondent Ellammal and the appellants and the third respondent are available. It is seen that Exs.A.7, A.8, A.9 and A.10 are similar tax receipts issued by the Kancheepuram Municipality on various dates in the joint names of the first respondent Ellammal and the appellants and the third respondent. Ex.A.11 is the tax receipt that had been issued in the name of the first respondent Ellammal and Rajamanickam, father of the appellants 1 and 2 and the husband of the third appellant. Ex.A.12 is the Birth certificate issued in the name of Kumarasamy, whose father is Murugappa Mudaliar and mother is Ellammal, the first respondent herein. Ex.A.13 is the loan pass book issued by Periya Kancheepuram Co-operative Town Bank Ltd., which was issued on 24.06.1972 wherein, the account holder's name is stated as Ellammal and adress is No.56, Mandapam Street, Kancheepuram. Ex.A.14 is the similar document stands in the name of the first respondent. 10. Ex.A.13 is the loan pass book issued by Periya Kancheepuram Co-operative Town Bank Ltd., which was issued on 24.06.1972 wherein, the account holder's name is stated as Ellammal and adress is No.56, Mandapam Street, Kancheepuram. Ex.A.14 is the similar document stands in the name of the first respondent. 10. As submitted by the learned counsel appearing for the respondents 1 & 2 / plaintiffs, after the death of Murugappa Mudaliar, for the payment of property tax, receipts were being issued by the municipal authorities in the joint names of Ellammal, the widow of Murugappa Mudaliar and his brother Rajamanicam. After the demise of Rajamanickam, the tax receipts are being issued in the name of the first respondent, Ellammal and the appellants 1 to 3 and the third respondent as legal heirs of the said Rajamanickam. 11. Learned counsel appearing for the respondents 1 and 2 submitted that the first respondent has paid the property tax for the suit property. The electricity consumption charges being paid by her and family card and other documents were obtained by the first respondent as wife of late Murugappa Mudaliar. In the aforesaid circumstances, the evidence adduced by the first appellant as D.W.1 that he does not know who the respondents 1 & 2 are would show that he was not prepared to speak the truth. 12. The first appellant as D.W.1 has deposed in his chief examination that the first respondent is not the wife and the second respondent is not the daughter of late Murugappa Mudaliar. In the cross-examination, according to him, he did not know about the respondents 1 and 2 herein, however, he has further stated that the first respondent had been the wife of one Sundara Mudaliar, for which there is no evidence available on record. Even according to the respondents 1 and 2, the first respondent married Murugappa Mudaliar, only after the death of his first wife, as widow of Sundara Mudaliar. There is no contra evidence on the side of the appellants. In the later portion of his evidence, the first appellant / D.W.1 has admitted that the first respondent had mortgaged the property belonged to late Murugappa Mudaliar and obtained loan from Periya Kancheepuram Co-operative Town Bank Ltd., and then she redeemed the property and that water charges have been paid by Ellammal, the first respondent herein, since 1971 till the date of his deposing evidence. Admittedly, the first respondent is paying house tax for the suit property, however, the appellants have not taken any action against the payment being made by the first respondent towards house tax and property tax. It is seen that D.W.2, who was examined on the side of the appellants herein has deposed that he is related to Murugappa Mudaliar and Rajamanicka Mudaliar, however, he has admitted that Murugappa Mudaliar had one daughter by name of Vedavalli. In the cross-examination, D.W.1 has admitted that at the time of partition between Murugappa Mudaliar and his brother Rajamanicka Mudaliar, the first respondent was living with Murugappa Mudaliar. He has further admitted that the respondents 1 and 2 were living in the property with Murugappa Mudaliar for about 47-48 years. 13. According to the learned counsel for the respondents 1 & 2, the evidence of P.W.1, D.W.1 and D.W.2 and the documents marked on the side of both the parties would clearly establish that the respondents 1 and 2 respectively are wife and daughter of late Murugappa Mudaliar. It is seen that Ex.A.34 is a printed marriage invitation of Vedavalliammal, the second respondent herein. As per this invitation, the marriage of the second respondent was performed with one Forester Paneer Selvam on 29.04.1964. As per the invitation for performing the marriage on the side of the bride Vedavalliammal, the name of Rajamanicka Mudaliar, father of the appellants 1 and 2 and husband of the third appellant has been printed, admitting the fact that the bride Vedavalliammal as daughter of his elder brother, late Murugappa Mudaliar. The said document cannot be disputed by the appellants in the second appeal. 14. Learned counsel appearing for the appellants submitted that the first respondent has not produced the Death Certificate of Sundara Mudaliar, the deceased first husband of Elammal to prove that she was the legally wedded wife of Murugappa Mudaliar. However, the first respondent herein has categorically stated that she married Murugappa Mudaliar, only after death of her first husband. There is proper evidence to show that she had lived with Murugappa Mudaliar as husband and wife in the same house along with her daughter, the second respondent and Rajamanicka Mudaliar had accepted the fact that the second respondent herein is the daughter of his brother late Murugappa Mudaliar. There is proper evidence to show that she had lived with Murugappa Mudaliar as husband and wife in the same house along with her daughter, the second respondent and Rajamanicka Mudaliar had accepted the fact that the second respondent herein is the daughter of his brother late Murugappa Mudaliar. In such circumstances, considering the documents produced on both sides, the Court has to legally presume that the first respondent is the legally wedded wife and the second respondent is the daughter of Murugappa Mudaliar born through the first respondent herein.On the aforesaid circumstances, I am of the considered view that there is no contra evidence on the side of the appellants herein to disprove the evidence of the respondents 1 & 2 / plaintiffs that the first respondent is the wife and the second respondent is the daughter of late Murugappa Mudaliar, born through the first respondent. The evidence available on record both oral and documentary would clearly establish that the respondents 1 and 2 respectively are wife and daughter of late Murugappa Mudaliar. 15. It is seen that Ex.B.24 is the certified copy of the exparte judgment, dated 02.04.1979 made in O.S.No.79 of 1977. The said suit had been filed by the respondents 1 and 2 herein against the appellants and Anbalagan, the third respondent herein for declaration of plaintiffs right to take water from a common well and for mandatory injunction directing the appellants herein to restore the said well. From the copy of the Judgment, it is seen that the suit relating to the well was dismissed by the District Munsif Court, Kancheepuram, on the ground that there was no representation for the respondents 1 and 2 / plaintiffs on the date of hearing of the said suit. 16. The appellants have also raised a defence stating that the suit filed by the respondents 1 & 2 herein was not maintainable, as the same was hit by res judicata, on the ground that the earlier suit filed by the respondents 1 & 2 had been dismissed for default. According to the learned counsel for the respondents 1 & 2, the exparte order of dismissal of the aforesaid suit filed by the respondents 1 and 2 herein cannot operate as res judicata against the present suit filed by the respondents 1 & 2. 17. According to the learned counsel for the respondents 1 & 2, the exparte order of dismissal of the aforesaid suit filed by the respondents 1 and 2 herein cannot operate as res judicata against the present suit filed by the respondents 1 & 2. 17. In State of Karnataka vs. All India Manufacturers Organisation, reported in 2006 (4) SCC 683 , as held by the Hon'ble Supreme Court, Section 11 CPC is not the foundation of the principle of res judicata, but merely a statutory recognition thereof and hence, the section need not be construed an exhaustive general principle of law. The main purpose of the doctrine "res judicata" is that once a matter has been determined in a former proceeding, it should not be open to the parties to re-agitate the matter again and again. Section 11 CPC recognises this principle and forbids a court from trying any suit or issue, which is res judicata, recognising both "cause of action estoppel" and "issue estoppel". Res judicata is founded on two grounds; one being the maxim nemo debet bis vexari pro una et eadem causa, ie., no one ought to be twice vexed for one and the same cause and secondly that there ought to be an end to the litigation. It is a well settled proposition of law that once a matter has been determined finally by a competent forum, it cannot be re-agitated by the same parties on the settled issue, which has reached its finality, since it would be hit by principle of "res judicata". 18. It is a well settled proposition of law that once a matter has been determined finally by a competent forum, it cannot be re-agitated by the same parties on the settled issue, which has reached its finality, since it would be hit by principle of "res judicata". 18. In Saroja vs. Chinnusamy, reported in 2007 (8) SCC 329 , the Hon'ble Apex Court has held as follows : "5...After a careful reading of the provisions under Section 11 CPC, it is discernible that in order to constitute a res judicata, the following conditions must be satisfied :- (i) There must be two suits – one former suit and the other subsequent suit; (ii) The court which decided the former suit must be competent to try the subsequent suit; (iii) The matter directly and substantially in issue must be the same either actually or constructively in both the suits; (iv) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the former suit; (v) The parties to the suit or the parties under whom they or any of them claim must be the same in both the suits; (vi) The parties in both the suits must have litigated under the same title." The Supreme Court has made it clear in the decision that the matter directly and substantially in issue must be either actually or constructively in both the suits and must have been heard and finally decided by the competent court in the former suit. 19. As per Ex.B.24, it is only an exparte Judgment of dismissal in O.S.No.79 of 1977 relating to declaration of plaintiff's right to take water from a common well and for mandatory injunction directing the appellants herein to restore the said well. As the suit was dismissed for default, in other words due to non-prosecution of the case by the respondents 1 & 2 herein, the said suit was dismissed. In the aforesaid circumstances, it cannot be construed that the matter directly and substantially in issue in the present suit filed by the respondents 1 & 2 herein was already heard and finally decided. In the aforesaid circumstances, it cannot be construed that the matter directly and substantially in issue in the present suit filed by the respondents 1 & 2 herein was already heard and finally decided. There is a dismissal of the earlier suit, that had been filed based on a different cause of action, which cannot be a bar for the respondents 1 & 2 for instituting the present suit, seeking declaration of title and permanent injunction in respect of the property, that was left by Murugappa Mudaliar, being his legal heirs. Admittedly the suit property is different, cause of action and the relief sought for in the present suit also different. 20. The vital point involved in the suit as well as in the second appeal is whether the respondents 1 & 2 are the legal heirs of late Murugappa Mudaliar or not. If they are the legal heirs of the said deceased, the appellants being the Class II heirs have no right in the suit property to raise their defendant against the respondents 1 & 2. The aforesaid issued was not finally decided by any court in the earlier suit, as it was only an exparte order of dismissal of a suit, wherein the cause of action pleaded and the relief sought for are different from the present suit. 21. In Dadu Dayalu Mahasabha, Jaipur (Trust) vs. Mahant Ram Niwas, reported in 2008 (11) SCC 753 , the Hon'ble Apex Court has held that as per Section 11 and Order 2 Rule 2 CPC, the earlier Judgment would operate as res judicata when a subsequent suit, wherein the matter is directly or substantially is in issue. Section 11 CPC not only recognises the general principle of res judicata, but also bars the jurisdiction of the court in terms of Section 12 thereof. However it would not attract where the Judgment is wholly without jurisdiction or issues involved with pure question of law. In the instant case, the earlier suit filed by the respondents 1 & 2 relating to some other property and the alleged cause of action in the earlier suit is also admittedly different and further, as the suit was dismissed for default, it is clear that no issue was directly and substantially decided in the earlier suit in O.S.No.79 of 1977, so as to attract the provision under Section 11 CPC. Therefore, this Court is of the considered view that the suit filed by the respondents 1 & 2 herein is not barred by principles of res judicata, as alleged by the appellants in the second appeal. 22. The respondents 1 and 2 have categorically established their case that they are the legal heirs of late Murugappa Mudaliar, being his wife and daughter respectively. In addition to the evidence of the first respondent, who was examined as P.W.1, the first appellant, who was examined as D.W.1 has also admitted in the cross-examination that the first respondent has been residing in the house with late Murugappa Mudaliar and also subsequently for about 47-48 years. The first respondent had mortgaged the property and subsequently redeemed the mortgage only as wife of Murugappa Mudaliar. As per the marriage invitation of the second respondent, late Rajamanicka Mudaliar, had admitted the fact that the second respondent is the daughter of his elder brother, late Murugappa Mudaliar. It is a well settled proposition of law that admission needs no proof and further, the admission made by late Rajamanickam is binding on the appellants, as they have claimed right only through him. The documents marked on the side of the respondents 1 and 2 as Exs.A.1 to A.34 supported by the oral evidence adduced by the first respondent / P.W.1 and the admission made by D.W.1 and D.W.2 would clearly establish that only after the demise of his first wife, late Murugappa Mudaliar married the first respondent, who had been a widow and the second respondent, is the daughter of Murugappa Mudaliar born through the first respondent herein. As legal heirs of Murugappa Mudaliar, the respondents 1 and 2 / plaintiffs are entitled to declaration of title and injunction in respect of the suit property, which was left by late Murugappa Mudaliar. Without considering the legal aspects and the evidence, the trial court had dismissed the suit, however, the same was rightly reversed and the suit was decreed by the appellate court. 23. Without considering the legal aspects and the evidence, the trial court had dismissed the suit, however, the same was rightly reversed and the suit was decreed by the appellate court. 23. As per Section 100 of the Code of Civil Procedure, Second Appeal will lie in the High Court against the Judgment and Decree passed by any subordinate court, within the jurisdiction of the High Court, only if the Court is satisfied that it involves a substantial question of law to be decided, otherwise the second appeal has to be dismissed on the ground that there is no substantial question of law. 24. In Ramanuja Naidu vs. Kanniah Naidu & Anr., reported in JT 1996 (3) SC 164, it was held by the Hon'ble Apex Court that once the evidence on which the courts of fact have acted was admissible, no party can be allowed to raise a plea on the ground that the evidence is insufficient to justify the finding of facts in the second appeal. I the instant case, it is not in dispute that the suit property was left by late Murugappa Mudaliar and the respondents 1 & 2 have established the fact that they are the legal heirs of the said deceased, hence, in the second appeal, no substantial question of law could be raised by the appellants, as per the evidence available on record. Similarly by raising a substantial question of law, the burden cannot be shifted by the appellant on the other side against the Indian Evidence Act. 25. In Bismillah Begum (dead) by LRs vs. Rahmatullah Khan (dead) by LRs, reported in AIR 1998 SC 970 , the Hon'ble Apex Court has categorically ruled that the findings of fact arrived at by the courts below are binding on the parties in second appeal, which cannot be construed as a substantial question of law, unless the finding is perverse. In the instant case, the appellate court has given its findings only based on the admission made by the appellants as per the evidence. Based on the evidence available on record, the appellate court has given its findings, which is not perverse, since the same is neither against the evidence, nor without any evidence and therefore, the findings of the appellate court cannot be challenged by the appellants, merely by describing the same as a substantial question of law in the second appeal. 26. Based on the evidence available on record, the appellate court has given its findings, which is not perverse, since the same is neither against the evidence, nor without any evidence and therefore, the findings of the appellate court cannot be challenged by the appellants, merely by describing the same as a substantial question of law in the second appeal. 26. In Smt.Annapoorani Ammal vs. G.Thangapalam, reported in 1989 (3) SCC 287 , the Hon'ble Apex Court has held that exercise of jurisdiction by the High Court, under Section 100 is not justified, since there is no substantial question of law involved to be decided in the second appeal. It has been made clear by the Hon'ble Apex Court that unless there is substantial question of law involved in the second appeal, the same would not be sustainable. 27. In the instant case, this Court is of the considered view that the findings of the appellate court is based on the admission made by the appellants and the evidence available on record, hence, the findings of the appellate court cannot be construed as a perverse finding to be interfered with. 28. As discussed earlier in the Judgment, the alleged substantial question of law raised by the appellants in the second appeal, cannot be construed as a substantial question of law, since the exparte dismissal of the suit in O.S.No.79 of 1977 filed by the respondents 1 and 2 against the appellants and others herein could not be "res judicata". As the issue involved in the suit relating to the second appeal was not directly and substantially decided by any competent court, there is no bar for the appellate court for allowing the appeal and granting the decree, as prayed in favour of the respondents 1 & 2 / plaintiffs, based on the evidence. Hence, the alleged substantial question of law raised by the appellants herein is answered in favour of the respondents 1 & 2 / plaintiffs and against the appellants. 29. This Court is of the view that the first appellate court has considered the evidence both oral and documentary properly in reversing the Judgment rendered by the trial court on merits and as such there is no substantial question of law involved to be decided in the second appeal, which warrants any interference by this Court, hence, the second appeal is liable to be dismissed. 30. 30. In the result, confirming the Judgment and Decree passed by the appellate court, the second appeal is dismissed with costs.