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2018 DIGILAW 2694 (MAD)

S. Prema v. Gandhimathi Ammal

2018-08-31

T.RAVINDRAN

body2018
JUDGMENT : Challenge in this Second Appeal is made to the judgment and decree dated 22.04.2004 passed in A.S.No.193 of 2002 on the file of the Principal District Court, Villupuram confirming the judgment and decree dated 11.04.2002 passed in O.S.No.892 of 1994 on the file of the District Munsif Court, Villupuram. 2. Second Appeal has been admitted on the following substantial questions of law. (i) Whether the judgment and decree in O.S.No.716 of 1989 will constitute resjudicata, eventhough plaintiff is not party to the suit? (ii) Whether the judgment and decree in O.S.No.716 of 1989 will constitute resjudicata even though the properties involved in the 2 suits are different? 3. Considering the scope of issues involved between the parties lying in a narrow compass, it is not necessary to dwell in to the facts of the case in detail. 4. Suffice to state that the plaintiff claims title to the suit properties on the strength of a sale deed dated 24.08.1984 executed in her favour by Chinna Pappammal @ Raja Lakshmi for herself and as the general power agent of Ramachandra Naidu. The abovesaid sale deed had been marked as Ex.A3. Materials placed on record go to show that the earlier proceedings had been pending in O.S.No.716 of 1989 between Chinna Pappammal @ Raja Lakshmi and the defendant. It is thus found that the abovesaid suit laid by Chinna Pappammal @ Raja Lakshmi had been dismissed and the first appeal preferred by her had also been dismissed. The copy of the judgment and decree passed in O.S.No.716 of 1989 had been marked as Exs.B1 and B2. The copy of the judgment rendered in first appeal A.S.No.7 of 1993 had been marked as Ex.B3. The copy of the judgment and decree passed in O.S.No.716 of 1989 had been marked as Exs.B1 and B2. The copy of the judgment rendered in first appeal A.S.No.7 of 1993 had been marked as Ex.B3. Thus, it is found that the claim of Chinna Pappammal @ Raja Lakshmi to have acquired certain properties from Anantha Raman by way of a sale deed dated 12.09.1963 in respect of the acres 0.06, within acres 0.16 in suit survey No.95/1, the channel rights, the well and the service connection No.30 had been not accepted in O.S.No.716 of 1989 and accordingly, it is also found that the sale deed of the defendant dated 24.03.1983, the copy of which document has come to be marked as Ex.A4, had been accepted in the abovesaid suit and accordingly, when in the abovesaid suit, the plaintiff's vendor is found to be not entitled to have acquired any right on the strength of the sale deed dated 12.09.1963, the case of the plaintiff that she had acquired certain suit properties from her vendor by way of Ex.A3 sale deed as such cannot be accepted and also found to be rightly negatived by the Courts below. The Courts below on an analysis of the materials placed on record found that the plaintiff's vendor had suffered a decree in O.S.No.716 of 1989 as regards the properties alleged to have been purchased by her from Anantha Raman by way of a sale deed dated 12.09.1963. In such view of the matter, the further case of the plaintiff that his vendor had alienated the said properties to him under the Ex.A3 sale deed cannot be accepted and rightly rejected by the Courts below. 5. The other set of properties conveyed to the plaintiff by Chinna Pappammal @ Raja Lakshmi is found to be based on the power of attorney deed executed in her favour by Ramachandran which had been marked as Ex.A2 dated 12.08.1984. However, when it is found that Ramachandran himself had alienated 0.2 cents of land and ¼ share in the well right to the defendant by way of a sale deed dated 23.06.1994 much prior to Ex.A2 power deed, the sale deed dated 23.06.1994 being marked as Ex.B4, it is found that the power deed Ex.A2 loses its force and validity. However, when it is found that Ramachandran himself had alienated 0.2 cents of land and ¼ share in the well right to the defendant by way of a sale deed dated 23.06.1994 much prior to Ex.A2 power deed, the sale deed dated 23.06.1994 being marked as Ex.B4, it is found that the power deed Ex.A2 loses its force and validity. Therefore, the case of the plaintiff that her vendor had the competency to alienate the property of Ramachandran based on the basis of the power deed Ex.A2 as such cannot be readily accepted. Furthermore, when it is found that much prior to Ex.A2 power deed, the owner Ramachandran had alienated to the defendant, two cents of land and ¼ right by way of the sale under Ex.B4, the case of the plaintiff that she has acquired absolute right in respect of the properties covered under Ex.A3 also falls to the ground. 6. The plaintiff has failed to establish that following Ex.A3 sale deed, she has been in the possession and enjoyment of the suit properties. The plaintiff has not filed any material to hold that the suit properties as described in the plaint are in her possession and enjoyment. On the other hand, as rightly determined by the Courts below, the plaintiff is found to be not sure about the actual extent of the suit properties and been giving prevaricative answers with reference to the same during the course of her evidence and also unable to trace the title of her predecessors in interest and in such view of the matter, as rightly determined by the Courts below, the plaintiff is not definite as to anything of the properties with reference to which she has come forward with the suit. P.W.2 examined on behalf of the plaintiff would also state that he does not know whether the plaintiff's vendor Chinna Pappammal @ Raja Lakshmi enjoyed the suit properties and does not know for what purpose and in respect of which properties, the plaintiff had laid the suit. Accordingly, it is seen that there is no material placed by the plaintiff to establish her claim of title, possession and enjoyment of the suit properties as projected in the plaint and in such view of the matter, it is seen that the Courts below had rightly non-suited the plaintiff and no interference is called for with reference to the same. 7. 7. When it is found that the plaintiff's vendor is not entitled to a portion of the suit properties vide Exs.B1 to B3 in respect of which the plaintiff claims the reliefs, accordingly, it is seen that the Courts below are justified in holding that the judgment and decree passed in O.S.No.716 of 1989 would operate as res-judicata to the plaintiff's present suit as the plaintiff is claiming right to the said suit properties only through her vendor under Ex.A3 sale deed and further, when the properties in O.S.No.716 of 1989 and the present suit of the plaintiff are similar in respect of the properties alleged to have been purchased by the plaintiff's vendor from Anantha Raman and when in O.S.No.716 of 1989, the title of Anantha Raman in respect of the suit properties comprised in the sale deed dated 12.09.1963 has been held to be not established, in all, it is found that the plaintiff's suit had been rightly dismissed by the Courts below. No interference is called for with reference to the same. Considering all the above facts, the substantial questions of law formulated in the second appeal are accordingly answered against the plaintiff and in favour of the defendant. 8. For the reasons aforestated, the second appeal fails and is accordingly dismissed. No costs. Consequently, connected miscellaneous petition, if any, is closed.