Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 1486 (MAD)

R. Sivakumar v. M. Thyagarajan

2018-04-19

S.S.SUNDAR

body2018
JUDGMENT : S.S. SUNDAR, J. 1. The plaintiffs in the suit in O.S.No.185 of 2011 on the file of the Principal District Munsif Court, Nagercoil, are the appellants in this Second Appeal. 2. The appellants filed the suit in O.S.No.185 of 2011 for declaring the customary right of using the suit property as burial ground by the plaintiffs and their community people to bury dead bodies and for a permanent injunction restraining the defendants from obstructing their right of making use of the suit property for burying dead and also for a permanent injunction restraining the defendants from demolishing or erasing the existing tombs inside the suit property. 3. Though it is not necessary to deal with the pleadings in detail for the purpose of this appeal, it is necessary to briefly state the facts to consider the issues on hand. The plaintiffs are the permanent residents of Melaramanputhoor village. Since there are numerous persons who are having same interest in the suit property and the relief claimed in the suit, the suit has been filed in a representative capacity. 4. It is the case of the plaintiffs that the plaintiffs and several other residents of Melaramanputhoor are the descendants of a common ancestor and that they are living as a separate community in Melaramanputhoor. It is stated that there are about hundred families of plaintiffs' community and unlike most of the Hindus, they used to bury their dead and do not cremate. It is the specific case of the plaintiffs that the entire extent of suit property measuring an extent of 60 cents is used as the burial ground by the members of plaintiffs' community from time immemorial and the custom of burying the dead in the suit property is being followed for more than 80 years. 5. It is also the case of the plaintiffs that there are inscriptions about the deceased buried and that the existing tombs would show that from 1927 there were burials and that the final burial was on 14.07.2010. It is also stated that there is no alternative burial ground for the people of the plaintiffs' community. The plaintiffs further stated in the plaint that no permission was sought for or obtained from any one for burying the dead in the suit property and that the burials were done openly without any obstruction from any one for a long period. The plaintiffs further stated in the plaint that no permission was sought for or obtained from any one for burying the dead in the suit property and that the burials were done openly without any obstruction from any one for a long period. It is further stated in the plaint that after the burials of the dead, their relatives used to visit the burial ground during anniversaries and also on Aadi Amavasai and Thai Amavasai to offer prayer and to do obsequies for the dead. The plaintiffs have also given a list of persons who were buried in the suit property from the year 1994. It is the case of the plaintiffs that for the first time it is stated in the plaint that when the plaintiffs made a visit to pay homage to their deceased father on 02.02.2011 during Thai Amavasai, the plaintiffs were obstructed by the fifth defendant Thilak saying that the suit property belonged to one Sudalaimadan and that the said right is now devolved on the fourth defendant and that the fourth defendant has appointed the fifth defendant as her agent to look after the suit property. The plaintiffs have also referred to the suit in O.S.No.499 of 1997 for similar relief filed by one Bagavathy Perumal Nadar against Muthukrishnan and others which was dismissed. Further, it is stated that the suit was filed by the plaintiffs therein claiming adverse title in it and that the same was dismissed on technical grounds without deciding the rights of the parties and the nature of use. It is further stated that the cause of action and the relief claimed in the earlier suit in O.S.No.499 of 1997 are quiet different and that the judgment passed in O.S.No.499 of 1997 does not bar the present suit and the right of the plaintiffs to file the present suit to seek the declarative relief prayed for in the suit. In the plaint, the title of defendants 1 to 4 was also disputed. 6. The suit was contested by the third defendant. Defendants 1 to 4 are the sons and the daughter of Late S.Muthukrishnan. The written statement filed by the third defendant is on behalf of all the defendants. In the plaint, the title of defendants 1 to 4 was also disputed. 6. The suit was contested by the third defendant. Defendants 1 to 4 are the sons and the daughter of Late S.Muthukrishnan. The written statement filed by the third defendant is on behalf of all the defendants. The main defence taken in the suit is that the present suit is not maintainable as the earlier suit in O.S.No.499 of 1997 filed by one Bagavathy Perumal Nadar and nine others as plaintiffs which was also filed in a representative capacity was dismissed and that the earlier suit will operate as res judicata. It is further stated that in the earlier suit which was filed in a representative capacity where 45 persons were impleaded and ultimately, the trial Court dismissed the suit by a judgment dated 15.12.2009 and the present suit is nothing but the second round of litigation by a different set of plea but on the same facts and cause of action. It is stated that the father of defendants 1 to 4 claimed absolute title and the plaintiffs in the previous suit disputed the title of father of defendants 1 to 4. In the earlier suit also, the father of defendants 1 to 4 claim right under the gift deed executed by his grand-mother Smt.Lakshmi Ammal in favour of her son Subramaniya Nadar which was marked as Ex.B1 dated 17.04.1957. It is further stated that based on the land tax receipts and the settlement patta given to the father of Mr.Muthukrishnan, the Court has accepted the case of the defendants and dismissed the suit holding that the case of the plaintiffs about the character of suit property is false and that the suit property is the absolute property of the father of defendants as per the registered Will. It was also stated in the written statement that the defendants 1 and 2 jointly executed a settlement deed in favour of the fourth defendant in respect of an extent of 2,400 sq. ft. meters on 04.09.2009 and after the said settlement deed, the fourth defendant has also given a power of attorney in favour of the fifth defendant to manage the suit property. 7. ft. meters on 04.09.2009 and after the said settlement deed, the fourth defendant has also given a power of attorney in favour of the fifth defendant to manage the suit property. 7. Sum and substance, the case of the defendants in the present suit is that the issue arose for consideration in the earlier suit and the present suit are one and the same and though the parties who have filed the present suit are not the same, the plaintiffs who had filed the earlier suit, and the appellants are litigating under the same title and on the same set of facts for almost identical reliefs. 8. Before the trial Court, the plaint in O.S.No.499 of 1997 on the file of the Principal District Munsif Court, Nagercoil, is filed as Ex.A4 and the certified copy of the judgment was marked as Ex.A5. The trial Court framed the first issue as whether the previous suit in O.S.No.499 of 1997 would operate as res judicata. The second issue was whether the suit property is being used as a burial ground. The other issues are relating to the maintainability of the suit without seeking declaration of title and about the entitlement of the plaintiffs to get declaration as to the plaintiffs' customary right. The trial Court elaborately discussed the nature of right and about the claim of the plaintiffs and about the custom or usage of the suit property. The distinction between the custom and usage was elaborately dealt with by the trial Court and found that there is no evidence from the revenue records to show that the suit property is a graveyard meant for a particular community, as pleaded in the plaint. Considering the evidence elaborately, the trial Court also found that the suit property belonged to one Vannian Sudalai Madan Nadar and that the said property was later devolved on the grand father of defendants 1 to 4 and thereafter, their father. Now, after the death of father of defendants 1 to 4, it is stated that the suit property devolved on the fourth defendant by virtue of the document Ex.B1 gift deed and the Will dated 14.06.1984. The trial Court further considered the facts relating to the earlier suit in O.S.No.499 of 1997 and the present suit. Now, after the death of father of defendants 1 to 4, it is stated that the suit property devolved on the fourth defendant by virtue of the document Ex.B1 gift deed and the Will dated 14.06.1984. The trial Court further considered the facts relating to the earlier suit in O.S.No.499 of 1997 and the present suit. In the earlier suit, the plaintiffs claim was elaborately considered with reference to the pleadings and evidence in extenso and it was found that the defendants have not proved their case despite some sporadic acts of burials and other instances suggesting that dead bodies were buried on occasions. 9. It is to be noted that the plaint itself was returned originally when it was filed citing Section 11 of C.P.C. and Order 2, Rule 2 of C.P.C. However, the plaint was numbered after an endorsement to the effect that the cause of action in the present suit and the earlier suit are different. The trial Court after going through the entire evidence found that the matter in issue was already agitated in the earlier suit where finality has been reached and the same matter cannot be admitted to be reopened with the new plea of customary right in the place of adverse possession which was pleaded in the earlier suit. Since the earlier suit was dismissed after considering the merits of the plaintiffs claim in extenso and the judgment in the former suit having become final the present suit is held to be not maintainable. Holding that the finality reached in the earlier suit cannot be re-opened by drafting the plaint in the present suit with a different colour, the trial Court also rejected the case of the plaintiffs and held that the plaintiffs have not established their customary right after elaborately discussing the ingredients to establish custom. It is further held that in the absence of any valid custom, the plaintiffs cannot succeed in relying upon the judgments cited. Ultimately, the trial Court held that the suit is barred by res judicata as well as under Order 2, Rule 2 C.P.C. Aggrieved by the judgment and decree of the trial Court, the plaintiffs preferred an appeal in A.S.No.65 of 2015 on the file of the First Additional Sub Court, Nagercoil. The lower appellate Court also dismissed the appeal and affirmed the findings of the trial Court on all issues. The lower appellate Court also dismissed the appeal and affirmed the findings of the trial Court on all issues. The arguments before the lower appellate Court were also the same as it was done before the lower Court and ultimately the appellate Court held that the judgment rendered in the suit in O.S.No.499 of 1997 will operate as res judicata and bars the second suit between the parties. As against the concurrent judgment and decree of the Courts below, the Second Appeal has been filed by the appellants. 10. In the memorandum of grounds, the following substantial questions of law have been raised: (1) Whether the lower appellate Court is legally or factually correct in confirming the decree and judgment of the Trial Court as and when the appellants/appellants/plaintiffs had established their case cogently, convincingly and materially? (2) Res-judicata being a mixed question of law and fact and whether it has to be pleaded in the written statement or not and the same is not pleaded by the contesting party whether it could be presumed that whether the same is waived by the parties under Section 11 of Civil Procedure Code? (3) As and when appellants/appellants/plaintiffs had produced ample evidence with regard to burials of 160 persons for the past 80 years and substantiate the same the disputed property has been classified as burial ground and whether the appellants/appellants/plaintiffs had customary right on the said property are not? 11. From the admitted facts, this Court has no hesitation to hold that the earlier suit will operate as res judicata to bar the present suit. The trial Court also justified that the suit is also barred under Order 2, Rule 2 of CPC. The earlier suit in O.S.No.499 of 1997 was also filed in a representative capacity representing the same set of parties who prayed for title to the suit property by adverse possession. The said suit was dismissed. For the purpose of claiming title, the plaintiffs in the previous suit have pleaded that the suit is being used as a burial ground from time immemorial and that by the continuous and long enjoyment of the property as burial ground, the plaintiffs are entitled to use the same as burial ground. The present suit is for a declaration of plaintiffs' customary right on the basis that the suit property is used as a burial ground from time immemorial. The present suit is for a declaration of plaintiffs' customary right on the basis that the suit property is used as a burial ground from time immemorial. Except the nature of relief that was prayed for in the two suits, the factual foundation in the two suits are one and the same. On the basis of the same set of facts and documents, the plaintiffs filed the earlier suit in a representative capacity and lost by getting a decision against them on all the issues. It is to be noted that since the earlier suit and the present suit are filed in a representative capacity, the identity of parties in the earlier suit and in the present suit cannot be disputed. Now, the issues that were raised and considered in the earlier suit though relating to title, the claim was on the basis that the suit property is used as a burial ground by the villagers from time immemorial. This issue has been elaborately discussed and considered in the earlier suit and the Court has rejected the claim of plaintiffs and dismissed the suit. Hence, the matters which are directly and substantially in issue in the present suit is also the matter which was directly and substantially in issue in the former suit. It is not in dispute that the earlier suit was dismissed and the decision has attained finality and it is not the case of any one that any appeal is pending. Having regard to the admitted facts and the legal position, this Court has no hesitation to hold that the present suit is barred by res judicata. 12. On the same set of facts, earlier suit was filed seeking a prayer for title and consequential injunction claiming that the suit property is the property of the plaintiffs and other community people. The relief claimed in the present suit will have the same impact on the defendants in the suit. Order 2, Rule 2 C.P.C. bars subsequent suit on the same cause of action. The relief claimed in the present suit will have the same impact on the defendants in the suit. Order 2, Rule 2 C.P.C. bars subsequent suit on the same cause of action. As per Order 2, Rule 2 and 3 C.P.C. a person who is entitled to more than one reliefs in respect of the same cause of action may sue for all or any of such relief and if he omits except with the leave of Court any relief which he is entitled to he cannot afterwards sue for the same relief which was omitted earlier. This Court has already held that the plaintiffs in the earlier suit are few villagers who have filed the suit in a representative capacity representing the people who are residing in the village and belonged to the same community. The present suit also is a suit filed in a representative capacity and in both the suits, the plaintiffs are one and the same. Even in the plaint, it is admitted about the dismissal of earlier suit and there is no explanation as to why the customary right was not prayed for earlier. Except stating that the plaintiffs are entitled to the customary right to use the suit property as a burial ground, the prayer in the earlier suit and the present suit is meant for getting the same desired result to follow same legal implications. In such circumstances, the suit must also fail in view of the specific provisions under Order 2, Rule 2 of CPC. In view of the foregoing discussions, the second appeal has no merits and the same is liable to be dismissed in limini. 13. The appeal is liable to be dismissed with exemplary costs, having regard to the conduct of plaintiffs in re-litigating and re-agitating the same issues which have become final earlier. In view of the fact that the second appeal is argued by a junior member of the bar, no cost is imposed. As a result, the Second Appeal is dismissed and the judgment and decree of the Additional Sub Court in A.S.No.68 of 2015 confirming the judgment and decree in O.S.No.185 of 2005 on the file of the Principle District Munsif Court, Nagercoil, is affirmed. No costs. Consequently, the connected civil miscellaneous petition is closed.