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2021 DIGILAW 315 (MAD)

Thangaraj v. T. Gnanasighamoney

2021-01-29

N.SATHISH KUMAR

body2021
JUDGMENT : N. SATHISH KUMAR, J. 1. Aggrieved over the concurrent findings of the Courts below, dismissing the suit filed for declaration, consequential injunction and also for putting up boundaries on the northern and eastern borders of the suit property, the present Second Appeal is filed. 2. The parties are referred to as per their rank before the trial Court. 3. It is the case of the plaintiffs that plaint 'A' schedule property is a specific plot of 53 cents, consists of 'B' schedule items 1 and 2. Plaint 'A' schedule property and other properties originally belonged to different branches of Nair Tarward. As per the partition effected among the members of the Tarward, 48 cents in suit Survey No. 4221, inclusive of 'B' schedule item No. 1 and other properties fell to the share of Saraswathi Ammal, the 10th defendant. The said 10th defendant also redeemed the previous mortgage executed by her Karnavan as per the release deed dated 03.01.1956. Out of which the 'B' schedule item 1, an extent of 22 cents was sold to the first plaintiff, under registered sale deed dated 12.09.1978. Similarly, the 11th defendant's mother viz. Ponnamma Pillai alias Narayani Pillai got 51 cents of land in suit survey No. 4221 under the Tarward partition and her ancestor redeemed a prior mortgage in an extent of 33 cents under the released deed dated 25.02.1963. The above property rights were devolved on the 11th defendant. From the 11th defendant, plaintiffs 1 and 2 purchased the item 2 of the 'B' schedule property, measuring to an extent of 31 cents. 4. Thus the plaintiffs 1 and 2 obtained title and possession over the 'B' schedule property; mutation also been effected in favour of the plaintiffs for 'B' schedule items 1 and 2; patta has also been issued and they are enjoying the property by paying necessary tax. Items 1 and 2 of the 'B' schedule property are two contiguous plots, which lie as a single plot. The same is schedule as 'A' schedule property. There are survey stones and bund on the northern and eastern borders to separate the suit 'A' schedule property from the remaining portion. On the western and southern borders, there are barbed wire fencing. The defendants 1 to 4 and the 5th defendant are in possession of the western side property of the suit 'A' schedule property. There are survey stones and bund on the northern and eastern borders to separate the suit 'A' schedule property from the remaining portion. On the western and southern borders, there are barbed wire fencing. The defendants 1 to 4 and the 5th defendant are in possession of the western side property of the suit 'A' schedule property. The defendants 6 to 9 are residing in the northern side of the suit 'A' schedule property. Defendants 10 and 11 have right to the different portion of the suit survey number. Taking advantage of the fact that the plaintiffs are now residing at Madras, the defendants 1 to 5 gradually removed the existing kayyals on the eastern border of the suit 'A' schedule property. When plaintiffs were attempted to put up a common boundary on the northern and eastern boundaries on 20.02.1986, the defendants 1 to 4 have obstructed them. Thereafter, on 23.02.1986, the defendants 1 to 5 were attempted to trespass into the plaint 'A' schedule property and attempted to put up a boundary inside the 'A' schedule property. Therefore, the plaintiffs have filed the suit. 5. Defendants 1 to 5 filed written statement denying the allegation of the plaint and stated that one Vasudevan Nair filed a suit in O.S. No. 215 of 1965 and in the above suit one Thomson was the 2nd defendant. The suit was dismissed. Against which, the said Vasudevan Nair filed an Appeal Suit in A.S. No. 57 of 1970 and the same was also dismissed, confirming the judgment and decree of the trial Court. Aggrieved over the same, the said Vasudevan Nair filed a Second Appeal in S.A. No. 396 of 1974 and the same was also dismissed, confirming the judgment and decree of the trial Court. It is further stated that the vendor of the plaintiff had no title or possession over the suit schedule property. The Judgment and decree in O.S. No. 215 of 1965 confirms the right, title and possession of the defendants 1 to 5. The Second appeal was dismissed on 26.08.1977. Therefore, the sale deed, executed in favour of the plaintiff dated 12.09.1978, is created only for the purpose of filing a false case. The 10th defendant in the present suit is also a party in the above proceedings. Therefore, the sale deed did not convey any title to the plaintiffs. The Second appeal was dismissed on 26.08.1977. Therefore, the sale deed, executed in favour of the plaintiff dated 12.09.1978, is created only for the purpose of filing a false case. The 10th defendant in the present suit is also a party in the above proceedings. Therefore, the sale deed did not convey any title to the plaintiffs. Hence, disputed the title and possession of the plaintiffs. 6. The learned District Munsif, based on the pleadings framed the following issues: (1) Whether the plaintiffs are entitled for any rights and enjoyment over the suit property? (2) Whether the plaintiffs have a right and enjoyment over the suit property? (3) Whether the sale deed dated 12.09.1978 is created only for the purpose of filing of the suit? (4) Whether the judgments and decrees in A.S. No. 57 of 1970 and S.A. No. 396 of 1974 are binding on the parties? (5) Whether the plaintiffs have right to demarcate the suit schedule property? (6) Whether the suit is maintainable? (7) To what other relief, the plaintiffs are entitled to? 7. On the side of the plaintiffs, PW-1 was examined and Ex. A1 to Ex. A19 were marked. On the side of the defendants, no oral evidence adduced. However, Ex. B1 to Ex. B16 were marked. The Commissioner's Report and sketch have been marked as Ex. C1 and C2. 8. On the basis of the evidence and materials, the trial Court dismissed the suit on the ground that the earlier the suit in O.S. No. 215 of 1965, was dismissed on the ground of limitation, in which the vendor of the plaintiffs is also party to the above suit and therefore, the above judgment is binding on the plaintiffs. Accordingly, non-suited the plaintiffs. The first appellate Court was also confirmed the finding of the trial Court and dismissed the appeal suit. The Courts below non-suited the plaintiffs, merely on the ground that earlier suit for redemption has been dismissed on the ground of limitation as such, the mortgagee got absolute right and title over the property under the mortgage and also plaintiffs failed to establish their right and possession on the basis of the release deeds exhibited under Ex. A1 and Ex. A1 and Ex. A2 and the earlier findings of the Courts are binding on the parties to the present suit and as such, the plaintiffs are not entitled to right, title and possession over the suit schedule properties. As against which, the present Second Appeal is filed. 9. While admitting the second appeal, the following substantial questions of law have been framed: "(a) Whether the Courts below are correct in dismissing the suit when the property mentioned in Ex. B1 suit refers only to item No. 1 in that suit which is S. No. 4214 and not the plaint schedule property? (b) Whether the Courts below are correct in negativing the plaintiffs claim when admittedly the ancestors of the defendants 1 to 5 have released their mortgage rights under Exs. A1 and A2 and thereafter the defendants cannot claim any right in the property?" 10. The learned counsel for the appellants submitted that the suit property originally belonged to Naiar Tarward and the total extent is 99 cents. The property was mortgaged in favour of one Boothan Nadar. After his death, his three sons viz. Perumalkutti, Ganakkannu and Narayanan, had inherited the mortgage right. Defendants 1 to 4 are the legal heirs of Ganakkannu, Defendant No. 5 is the legal heir of Narayanan. Defendants 6 to 9 are the legal heirs of Perumalkutti. His contention is that defendant No. 10 is the legal heir of original mortgagor, who got release deed from the branch of Narayanan under Ex. A2, for an extent of 32 cents. Under Ex. A7, she has executed a sale deed in favour of the first plaintiff for an extent of 22 cents, the first item of the 'B' schedule property. Similarly, one Vasudevan Nair on behalf of original mortgagor, legal heirs got release deed in respect of 33 cents under Ex. A1, on 25.02.1973 from the branch of Ganakkannu. Hence, his contention is that after release of mortgage rights, property was sold to the plaintiffs. The remaining 33 cents have not been redeemed. The earlier suit in O.S. No. 215 of 1965 was filed by the said Vasudevan Nair for redemption of the entire property. The release deeds were obtained under Ex. A1 and Ex. Hence, his contention is that after release of mortgage rights, property was sold to the plaintiffs. The remaining 33 cents have not been redeemed. The earlier suit in O.S. No. 215 of 1965 was filed by the said Vasudevan Nair for redemption of the entire property. The release deeds were obtained under Ex. A1 and Ex. A2 redeeming the extent of 65 cents by Vasudevan Nair and 10th defendant herein, the said Vasudevan Nair has a filed a suit for redemption of suit schedule items 1 and 2 morefully mentioned in the above suit, viz. 66 cents in survey No. 4221 and 2 acres 46 cents in survey No. 4214 and in the said suit, the father of defendants 1 to 4, viz. Thomson, was the second defendant. He has specifically pleaded that the plaintiff in the above suit divided the member of Tarward and already got redemption of more than his portion of the property and he is not competent to claim for redemption of the remaining portion of the mortgage. In the above suit only the issue was whether the plaintiff was entitled to redeem the remaining portion of the mortgaged property after got the released deed under Ex. A5 therein. The Court has held that the plaintiff's right to redeem the suit schedule item No. 1 is barred by time and since he has already redeemed the mortgage right under Ex. A5 therein, in excess of the portion of the land, he is entitled to and subsequently held that he is not entitled to redeem the suit schedule in item No. 2 in the suit. 10th defendant in the present suit was arrayed as 23rd defendant in the above suit, wherein she has taken a specific stand that she is entitled to 48 cents in Survey No. 4221, by taking delivery in O.S. Nos. 882 and 884 of 1124 ME, which had been filed for redemption of mortgage and got the execution of released deed dated 03.01.1956. The above suit was dismissed, holding that the plaintiffs are not entitled to redeem the schedule item No. 1, in view of the fact that the suit for redemption is barred by time and with respect to the suit schedule item No. 2, it is held that Vasudevan redeemed excessive share under Ex. A5 (Ex. A1 in the present suit). The above suit was dismissed, holding that the plaintiffs are not entitled to redeem the schedule item No. 1, in view of the fact that the suit for redemption is barred by time and with respect to the suit schedule item No. 2, it is held that Vasudevan redeemed excessive share under Ex. A5 (Ex. A1 in the present suit). Therefore his contention is that the earlier suit is in respect of items 1 and 2 in the above suit and not with reference to the suit schedule 3rd item in the previous suit. The above suit itself filed for redemption of items 1 and 2 and the finding of the earlier suit clearly indicates that Vasuedevan Nair was non-suited mainly on the ground that in respect of schedule item No. 2, he is not having right to redeem the property, since Saraswathiammal, defendant No. 23 in the above suit and defendant No. 10 in the present suit have a right to redeem the property under Ex. A23 filed in the above suit. In view of the above, the title of the 23rd defendant in the previous suit and 10th defendant in the present has not been affected by the finding of the Court. The said Saraswathi ammal, admittedly, sold the property, measuring to an extent of 22 cents under Ex. A7 in favour of the first plaintiff. As such, the suit is liable to be decreed holding that the plaintiffs got valid right and titled under Ex. A5 and Ex. A7 sale deeds from the rightful original owners, who got the property under Ex. A3 partition to an extent of 51 cents and Ex. A15 partition deed to an extent of 48 cents and they got release of their earlier mortgage right in an extent of 33 cents from the legal heirs of the original mortgagees under Ex. A1 and A2 release deed. From the above documents, the plaintiffs have purchased total 53 cents in the suit property. However, the Courts below, erroneously, misinterpreted the judgments in the earlier proceedings and non-suited the plaintiff. It is his contention that even assuming that Vasudevan Nair had a title in respect of 2 cents in survey No. 4221, the dismissal of the entire suit in respect of 'B' schedule item 2 inclusive of the said 2 cents of property is not legally sustainable. It is his contention that even assuming that Vasudevan Nair had a title in respect of 2 cents in survey No. 4221, the dismissal of the entire suit in respect of 'B' schedule item 2 inclusive of the said 2 cents of property is not legally sustainable. It is his further contention that the decisions in the earlier proceedings for redemption of mortgage will not be a bar to file the present suit for declaration of title and the present suit is not hit by the principles of res-judicata. The defendants have not even filed the pleading and written statement in the previous suit. Without those pleadings, the Court cannot come to the conclusion that the present suit is barred by res-judicata, whereas the Courts below even without verifying the plaint and written statement in the earlier proceedings, dismissed the suit for declaration of title. Hence, it is his contention that the Courts below have not properly appreciated the facts and the findings of the Courts below cannot be sustained in the eye of law and hence, he prays for allowing of this Second Appeal. In support of his contention, the learned counsel appearing for the appellants produced the following Judgments: 1. Ram Gobinda Dawan vs. Smt. Bhaktabala, 1971 (1) SCC 387 2. Sivaprakasam vs. Minor Venkatesan, 2015 (5) CTC 137 3. Gurbux Singh vs. Booralal, AIR 1964 SC 1810 (V 51 C 254) 4. A.M.K. Mariam Bibi and Others vs. M.A. Abdul Rahim and Others, AIR 2000 NOC 21 (Madras) 11. The learned counsel appearing for the respondents fairly admitted the factual matrix and submitted that the suit filed for declaration has to fail, since the plaintiff has to prover his case, he cannot pick up holes in the defendants' case. It is his contention that even assuming that Ex. A1 and Ex. A2 released deeds were obtained, there was no evidence to show that an extent of 99 cents were partitioned among the legal heirs of the mortgagee and remaining area, which was enjoyed by other branches of the legal heirs of the mortgagees, are still with them. In the earlier suit filed by one Vasudevan Nair, the Court held that the said Vasudevan Nair had a title only to two cents in item 1 and he got a release deed for more than his entitlement hence submitted that the suit is not maintainable. In the earlier suit filed by one Vasudevan Nair, the Court held that the said Vasudevan Nair had a title only to two cents in item 1 and he got a release deed for more than his entitlement hence submitted that the suit is not maintainable. It is his further contention that the first plaintiff's father has also filed a suit for bare injunction in an earlier occasion; the above suit was dismissed for non prosecution and an application, filed to restore the suit, was also dismissed and no appeal whatsoever was filed. Ex. B1 and Ex. B2-judgments of the Courts below clearly show that the vendor had only title in respect of 2 cents. Therefore, earlier judgment certainly binding on the parties and the suit is not maintainable. It is his further contention that the plaintiff also not established the identity of the properties and boundaries. Hence, submitted that the courts below were correctly non-suited the plaintiff and prayed for dismissal of the suit. 12. Heard the learned counsel appearing for the appellant, the learned counsel appearing for the respondent and perused the materials available on record carefully. 13. In the light of the above submissions, when the materials are perused, it is found that the plaintiffs herein traces the title to an extent of 53 cents in old survey No. 4221. It is not disputed by both sides that the total extent of Survey No. 4221 is 99 cents, which consists of two parts, northern and southern each portion, measuring 44½ cents. These facts have been accepted by the parties in an earlier litigation in S.A. No. 396 of 1974, which was arising out of the decree and judgment passed in original suit in O.S. No. 215 of 1965. This Court, in the above judgment clearly recorded the extent of the property situate in Survey No. 4221. It is also not disputed the fact that the plaintiffs traced title to an extent of 53 cents, on the basis of Ex. A5 and A7 dated 19.01.1985 and 12.09.1978. It is not disputed by the parties herein that the suit property in survey No. 4221 and the other properties originally belonged to different branches of Naiar Tarward and there was a partition among the family members under Ex. A15 and it is also admitted case of both sides that 99 cents were mortgaged to the defendants' predecessor viz. Boothan. It is not disputed by the parties herein that the suit property in survey No. 4221 and the other properties originally belonged to different branches of Naiar Tarward and there was a partition among the family members under Ex. A15 and it is also admitted case of both sides that 99 cents were mortgaged to the defendants' predecessor viz. Boothan. Similarly, it is not disputed that the said Boothan had three sons viz. viz. Perumalkutti, Ganakkannu and Narayanan and defendants 1 to 9 are the grandchildren of the said Boothan. The defendants 1 to 5 filed the written statement contending that the plaintiffs' vendors had no title to the property, the defendants set up their independent title only as per the judgment and decree in O.S. No. 215 of 1965, whereas, the plaintiffs in this case set up a title on the basis of purchase made under Ex. A5 and Ex. A7. 14. Before going to the other aspects, it is relevant to note that from the admitted facts in the previous suit in O.S. No. 215 of 1965, judgment and decree Ex. B1 and Ex. B2 in the present suit, that the defendants' grandfather Boothan was a mortgagee of an extent of 99 cents in Survey No. 4221. The said mortgagee had three sons. After his death, his three sons were enjoying the properties. One Vasudevan Naiar, who was the plaintiff in an earlier suit in O.S. No. 215 of 1965, redeemed the property to an extent of 33 cents under Ex. A1, dated 25.02.1963 from the branches of one Ganakannu, one of the son of the original mortgagee. Similarly, the 10th defendant in the present suit viz. Saraswathy Amma also redeemed the property to an extent of 32 cents under Ex. A2, dated 03.01.1956 from the legal heirs of Narayanan. When Ex. A1 and Ex. A2 carefully seen, particularly Ex. A2 dated 03.01.1956, makes it very clear that the 10th defendant redeemed the property to an extent of 32 cents. Ex. A2 further shows that in fact, a suit has been filed by the 10th defendant in O.S. Nos. 882 and 884 of 1124 ME and a decree was also passed in respect of the above property, thereby the legal heirs of the mortgagee have released the mortgage right, after receiving the amount fixed in the earlier Court degree. Similarly, under Ex. 882 and 884 of 1124 ME and a decree was also passed in respect of the above property, thereby the legal heirs of the mortgagee have released the mortgage right, after receiving the amount fixed in the earlier Court degree. Similarly, under Ex. A1, one Vasudevan Nair also redeemed the property to an extent of 33 cents from one Thomson, S/o. Ganakannu for the same amount and it is to be noted that specific boundaries have been given in respect of 33 cents. Similarly, in Ex. A2 also specific boundaries have been given for an extent of 32 cents. This facts clearly indicate that the mortgage right in respect of total 99 cents devolved upon the legal heirs of mortgagee, the legal heirs viz. three sons of original mortgagee were in enjoyment of the respective shares as that of the property devolved as per succession with the specific boundaries. Be that as it may. Defendant No. 10, who has redeemed the property to an extent of 32 cents under Ex. A2, sold item No. 1 of the 'B' schedule property, measuring to an extent of 22 cents to the first plaintiff under Ex. A7. The above said 22 cents, in fact, is a part of the 32 cents redeemed by defendant No. 10 under Ex. A2. Similarly, under Ex. A5, the plaintiffs have jointly purchased 31 cents in item 2 of 'B' schedule property from the 11th defendant, who is the daughter of one Ponnamma Pillai alias Narayani Pillai, she had a title as per Ex. A3 partition deed, besides a release of 33 cents through one Vasudevan Nair under Ex. A1. Now the plaintiffs claim right on the basis of Ex. A1, Ex. A3, Ex. A5 and Ex. A7. Admittedly plaintiffs 1 and 2, as per Ex. A5 and Ex. A7 purchased the property to an extent of 53 cents. This fact is not disputed. Plaintiffs are tracing the title only on the basis of these documents, whereas the defendants except denying the plaintiffs' contention set up independent title on the basis of the earlier decree and judgment passed in O.S. No. 215 of 1965. The Courts below have simply dismissed the suit on the ground that in the earlier suit in O.S. No. 215 of 1965, the plaintiffs predecessor in title lost their right to claim any title over the property. The Courts below have simply dismissed the suit on the ground that in the earlier suit in O.S. No. 215 of 1965, the plaintiffs predecessor in title lost their right to claim any title over the property. On perusal of the entire decree and judgment of both the Courts below, this Court is of the firm opinion that the trial Court and the first appellate Court have abdicated their responsibility in appreciating the entire documents and evidence. Since some of the original documents are in the Malayalam language, the trial Court and the first appellate Court abdicated its responsibilities and casually dealt the matter and dismissed the suit mainly on the ground that since the earlier suit filed by one Vasudevan Nair was dismissed, the present suit is not maintainable and barred by res-judicata. It is relevant to note that the present suit is filed in respect of 53 cents shown as 'B' schedule property items 1 and 2. The identity of the property never been disputed by the defendants in the written statement. On a perusal of the written statement, except denying the allegations in the plaint in an evasive manner, it is the main contention that as per the judgment and decree passed in the previous suit in O.S. No. 215 of 1965, they become title holders. Except that, no specific averments have been made with regard to the identity of the property. Be that as it may. Ex. B1 to E. B4 are the judgments and decrees of the trial Court and first appellate Court i.e. judgment and decree in O.S. No. 215 of 1965 and judgment and decree in A.S. No. 57 of 1970. On perusal of the same, it makes very clear that one Vasudevan Nair filed a suit for redemption of the mortgage. On a perusal of Ex. B1, it is seen that O.S. No. 215 of 1965 has been laid for redemption of two items of property viz. item No. 1 in S. No. 4214 for an extent of 2.46 acres and item No. 2 in S. No. 4221 for an extent of 66 cents on the northern side out of 99 cents. 15. The trial Court in the above suit, after considering the various documents, non-suited the plaintiff in respect of item No. 1 in the previous suit on the ground of limitation. 15. The trial Court in the above suit, after considering the various documents, non-suited the plaintiff in respect of item No. 1 in the previous suit on the ground of limitation. In paragraph No. 13, the trial court has categorically held that "the plaintiffs' right to redeem item No. 1 twelve year after 1076 is therefore, barred by time and not maintainable". However, in paragraph No. 14, the trial Court held that "for redeeming item nos. 2 and 3 now is no doubt within time" and non-suited the plaintiff, holding that he has already got redemption of more than his share of the properties and therefore, he is not entitled to claim redemption of the remaining portion of the mortgage. The above finding was recorded mainly on the ground that the said Vasudevan Nair has already redeemed 33 cents in southern side and therefore, negatived his claim for other 66 cents on Northern side. It is also relevant to note that in the above suit, 10th defendant in the present suit viz. Saraswathi Amma was also made as 23rd defendant and she has taken a specific stand that she is entitled to 48 cents in the same survey number, by virtue of the decree and judgment in O.S. No. 882 and 884 of 1124 ME. Her contention has never been disputed and in fact, in paragraph 14, the trial Court in previous judgment has also recognized her right to an extent of 48 cents. The trial Court also non-suited the said Vasudevan Nair, mainly on the ground that, he has already redeemed more than his share under Ex. A5-released deed, dated 25.02.1963 (Ex. A1 in the present suit) and in paragraph 10 of the appellate judgment, the appellate Court has also recorded that the appellant viz. the Vasudevan Nair has already redeemed and recovered possession of suit item 3 under Ex. A5-released deed, dated 25.02.1963 (Ex. A1 in the present suit). Hence, the Court has come to the conclusion that since he has already redeemed the excessive share under Ex. A1, he is not entitled to redeem other area. This Court in a second appeal also recorded that the said Vasudevan Nair has redeemed 33 cents in Survey No. 4221 on the southern portion. A1 in the present suit). Hence, the Court has come to the conclusion that since he has already redeemed the excessive share under Ex. A1, he is not entitled to redeem other area. This Court in a second appeal also recorded that the said Vasudevan Nair has redeemed 33 cents in Survey No. 4221 on the southern portion. It is to be noted that in the previous suit, the said Vasudevan Nair sought to redeem remaining 66 cents in Survey No. 4221, on northern side despite he redeemed southern portion for an extent of 33 cents under Ex. A1, dated 25.02.1963. Taking note of the above fact, the trial Court non-suited him to redeem the northern 66 cents in survey No. 4221. In the earlier judgment, the Courts never held that Ex. A1- released deed, dated 25.02.1963 executed in favour of the said Vasudevan Nair, is not valid in the eye of law. Only on the basis of the redemption under Ex. A1, he was non-suited in respect of other portion. Therefore, the contention of the defendants in the present suit that in view of the findings of the earlier suit, the plaintiffs have lost their right, cannot be countenanced. Further, the relationship between the parties pleaded in the documents were never challenged and none of the defendants have come before the Court and tendered any oral evidence before the trial Court. In the written statement, except stating that they have right, title and possession over the suit schedule property in view of the previous judgment, no further specific defence have been taken. Similarly, the 10th defendant has got redeemed 48 cents under Ex. A2 pursuant to the decree in earlier suits and she sold 22 cents to the plaintiff under Ex. A7. Therefore, merely on the ground that the karnavan of original mortgager viz. Vasudevan Nair was non-suited in the previous suit in O.S. No. 215 of 2005 in respect of items 1 and 2, it cannot be said that the suit is barred by limitation and the previous suits operates as res-judicata. Even though the said Vasudevan Nair was non-suited in respect of items 1 and 2, the Courts have recognized his release in respect of item 3 in the previous suit i.e. 33 cents in the southern portion under Ex. A1 in the present suit. The plaintiffs traced the title based on the above said release. Even though the said Vasudevan Nair was non-suited in respect of items 1 and 2, the Courts have recognized his release in respect of item 3 in the previous suit i.e. 33 cents in the southern portion under Ex. A1 in the present suit. The plaintiffs traced the title based on the above said release. It is not the case of the defendants that such document is never executed by the predecessor in title. In fact, the legal heirs of the mortgagees were also parties in the previous suit. This Court is of the view that the Courts below have not appreciated the documents properly. Ex. A1 itself clearly shows that release deed was obtained by Vasudevan Nair not only on his behalf, but on behalf of his co-sharers. Based on such document, the other title holders sold the property to the plaintiffs. It is also relevant to note that in Ex. A3-Partition deed, the said Vasudevan Nair was shown as second party and in fact, in the previous partition suit No. 1173 of 1103, the said Vasudevan Nair was appointed as receiver and others parties have no objection to the receiver's actions in redeeming the properties. Under those circumstances, the Vausedevan Nair redeemed 33 cents from one of the branches of the mortgagee on the southern portion in Survey No. 4221, whereas he has filed a suit in O.S. No. 215 of 1965 to redeem the other 66 cents on the northern side. Taking note of the fact that he has already got redemption of more than his portion of the property, his claim was negatived. However, the Courts have never held that the release deed executed in favour of the Vasudevan Nair is not valid. Further in this case pleadings in the previous suit were not filed. Further to decide the principle of res-judicata, it is mandatory on the part of the person pleading res-judicata, to produce the pleadings, judgment and decree of earlier proceedings, so as to enable the Court to determine whether the issues in the earlier proceedings and the present suit are one and the same and whether in the earlier suit the same issue has been decided between the same parties or the persons claiming under them, so that it will have binding force in the subsequent proceedings. Be that as it may. Be that as it may. When the issue was decided in an earlier suit between the same parties, merely on the basis of some findings in respect of other survey number, it cannot be said that the present suit is barred by limitation. The trial Court and the first appellate Court has never gone into the documents filed as Ex. B1 to Ex. B4 and simply dismissed the suit. Ex. A18 and A19 clearly shows that the revenue records muted in the name of the plaintiffs, ever since in the date of their purchase under Ex. A5 and A7. In the year 1992 itself, the patta passbook was also issued in favour of the plaintiffs and they have paid the tax regularly. The boundaries given in the plaint is not disputed in the entire written statement. The identity of the property was also not disputed. Above documents clearly shows that the plaintiffs are in possession also, whereas with regard to the contentions of the defendants that they have control over the suit schedule property or in possession, not even a scrap of paper, like tax receipt and revenue documents filed. Only decrees and judgments in the earlier suit were filed. It is also to note that father of first plaintiff filed a suit in O.S. No. 589 of 1990 for bare injunction. The above suit was dismissed for default and the judgment and order filed as Ex. B6 and Ex. B7. On perusal of the same, makes it clear that the above suit has been laid for permanent injunction and since he was not appeared, the above said suit came to be dismissed for default. The application filed to restore the above suit was also dismissed and the copy of the same have been filed under Ex. B8, Ex. B9 and Ex. B10. Merely because suit filed by father of the first plaintiff for bare injunction on the basis of his possession was dismissed for default, the same will not bar the present suit. No defence whatsoever raised in the written statement in that regard also. Finding of the Courts below is without appreciating the documents properly, the same are nothing but perverse. In such view of the matter, this Court holds that plaintiffs have established their title by oral and documentary evidence. 16. No defence whatsoever raised in the written statement in that regard also. Finding of the Courts below is without appreciating the documents properly, the same are nothing but perverse. In such view of the matter, this Court holds that plaintiffs have established their title by oral and documentary evidence. 16. Accordingly, this Second Appeal is allowed and the Judgment and decree of both the Courts below are set aside. The suit is decreed as prayed for with costs. Consequently, connected miscellaneous petition is closed.