Dismissed

Kumaresan, v. a.Kasi

Madras HC12 Sept 2016SA(MD)/572/2016

Case brief

AI extract

What is this about?

A Second Appeal was dismissed against a lower court's judgment declaring the respondent as the lawful owner of suit property and setting aside a prior decree. The High Court held that a previous suit dismissed against the appellant's predecessor operates as res judicata, barring the current claim.

What did the court decide?

The Second Appeal filed under Section 100 CPC was dismissed with no order as to costs.

Kumaresan, Vs a.Kasi — Property and Title | Madras HC (2016)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED 12.09.2016

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CORAM

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THE HONOURABLE MR.JUSTICE S.S.SUNDAR

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S.A.(MD)No.572 of 2016

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Kumaresan .. Appellant/Appellant/ 1^st Defendant

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Vs.

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A.Kasi ... Respondent/Respondent/ Plaintiff

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Prayer : Appeal is filed under Section 100 of C.P.C., to set aside the Judgment and Decree passed by the Subordinate Court, Sivagangai dated 03.09.2014 made in A.S.No.112 of 2012, by which confirming the Judgment and Decree passed by the District Munsif Court, Sivagangai made in O.S.No.62 of 2010 dated 10.09.2012 and allow the Second Appeal.

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For Appellant : Mr.SP.Kannan For Respondent : No appearance

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JUDGMENT

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The first defendant in the suit in O.S.No.62 of 2010 on the file of the District Munsif Court, Sivagangai, is the appellant in the above Second Appeal.

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The respondent in this appeal filed a suit in O.S.No.62 of 2010 for declaration of title and injunction in respect of the suit property measuring an extent of 45 and ¾ cents in Survey No.157/2 in Azhagichipatti Village, Sivagangai Taluk and Sivagangai District. The respondent has also prayed for setting aside the Judgment and Decree in O.S.No.213 of 2008 on the file of the District Munsif Court, Sivagangai obtained by the first defendant against the second defendant.

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https://hcservices.ecourts.gov.in/hcservices/ 3. Brief facts set out in the plaint filed by the respondent

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in this case are as follows:-

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The suit property originally belonged to one Muthukaruppan Chettiyar and the revenue records, namely, S.L.R indicated the fact regarding the ownership of the suit property by Muthukaruppan Chettiyar. Patta was also issued to him. After the death of Muthukaruppan Chettiyar, the suit property belonged to his son Annamalai Chettiyar and after the death of Annamalai, the suit property belonged to his adopted son Sathya Seelan. The revenue records were also mutated in favour of the adopted son of Annamalai Chettiyar, namely, Sathiya Seelan by proceedings dated 12.12.1994. Since, the said Sathiya Seelan was in enjoyment of the land as lawful owner, he executed a Sale Deed dated 16.10.2003 in respect of an extent of 109 Square feet in favour of a third party. Thereafter, pursuant to negotiation, the respondent purchased the suit property under Sale Deed dated 25.06.2008. Though the defendants have no right, the appellant suppressing the dispute regarding mutation of revenue records pending before R.D.O., filed collusive suit in O.S.No.213 of 2008 and obtained an ex-parte decree so as to make use of the collusive Judgment and Decree as against the respondent, viz., the lawful owner in Patta proceedings. Since the appellant was trying to interfere with the respondent's peaceful possession and enjoyment of the suit property, the plaintiff/respondent was constrained to file the present suit.

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4. The case of the appellant/first defendant as per the written statement filed by him are as follows:-

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The contention of the appellant is that the suit property originally belonged to A.Muthukaruppan Chettiyar and the entry of his name in S.L.R.Register and grant of Patta in favour of Muthukaruppan Chettiyar are denied. The case of the plaintiff that Annamalai Chettiyar is the son of Muthukaruppan and Sathiya Seelan is the son of Annamalai Chettiyar are also denied. The Sale Deeds and other revenue records were created by the respondent. The son of Muthukaruppan shown as the owner in S.L.R. Register is one Venkatachalam Chettiyar. The said Venkatachalam Chettiyar had a son by name Padhinettam Cheittyar. The son of Padhinettam Chettiyar is one Thirupathy Chettiyar. Hence, the suit property belonged to one Padhinettam Chettiyar and his son Thirupathy Chettiyar. Since, the heirs of the Muthukaruppan Cheittyar executed a Sale Deed in favour of one Chinnandi in the year 1983, the appellant was entitled to title by virtue the Sale Deed obtained from the said Chinnandi in the year 1995. Since the second defendant in the suit tried to interfere with the appellant's peaceful possession, the appellant obtained a decree in O.S.No.213 of 2008 against the second defendant. The Sale Deed obtained by the respondent in the year 2008, after knowing the Sale Deed in favour of the appellant, is illegal. Since Sathya Seelan, the father of the respondent had no right or enjoyment https://hcservices.ecourts.gov.in/hcservices/ over the suit property, the respondent is not entitled to the declaration or injunction, particularly, when the appellant is in

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enjoyment of the suit property.

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The Trial Court framed necessary issues and held that the respondent has proved his title and lawful possession of the suit property. The Trial Court also framed an issue whether the suit decreed in O.S.No.213 of 2008 is a nullity and not binding on the respondent. The Trial Court also granted a decree in favour of the respondent by setting aside the decree dated 20.01.2009 in O.S.No.213 of 2008 on the file of the District Munsif Court, Sivagangai.

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Aggrieved by the findings of the Trial Court, the appellant preferred an appeal in A.S.No.112 of 2012 on the file of the Subordinate Court, Sivagangai. The Lower Appellate Court after considering the pleadings and evidence both oral and documentary, independently came to a conclusion that the respondent has proved his title and enjoyment in respect of the suit property. The Lower Appellate Court also rendered the finding that the Judgment and Decree in a previous suit, namely, in O.S.No.393 of 1987 on the file of the District Munsif Court, Sivagangai has become final and it would operate as res-judicata as the predecessor in interest of the appellant, namely, Thirupathy Chettiyar is held to be not a lineal descendant of the original owner Muthukaruppan Chettiyar.

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Aggrieved by the Judgment and Decree of the Lower Appellate Court, the appellant has now filed the above Second Appeal raising the following points:-

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a) The plaintiff has failed to establish the plea of adoption of his vendor by the son of Muthukaruppan Chettiyar to claim title to the properties as a lineal descendant of Muthukaruppan Chettiyar.

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b) When it is the settled law that the plaintiff has to prove his case by positive evidence, the Courts below have not dealt with the issue of title in the manner known to law, but by accepting the plea of adoption and on the basis of the Judgment rendered in the previous suit.

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c) The Judgment and Decree in the previous suit in O.S.No.393 of 1987 on the file of the District Munsif Court, Sivagangai is not admissible in evidence, in view of Sections 42 and 43 of Indian Evidence Act.

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d) Since the appellant is not a party https://hcservices.ecourts.gov.in/hcservices/ in the previous suit in O.S.No.393 of 1987, the Judgment therein is not binding on the appellant and Section 11 of C.P.C.,

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has no application so as to hold that the said Judgment would operate as res judicata.

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e) The earlier suit is in respect of different property and hence, the subject matter of the suit is entirely different. The finding of the Lower Appellate Court is therefore unsustainable in law.

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It was urged by the learned counsel for the appellant that the adoption of Sathyaseelan by Annamalai Chettiyar is not proved in the manner known to law. First of all, the appellant is neither claiming any right under Annamalai nor accepts the title of Annamalai. When the appellant disputes the title of Annamalai Chettiyar, it is not proper to allow the appellant to raise this issue particularly when the appellant has not specifically disputed the validity of adoption in the written statement though there is a general denial. Secondly, proof of adoption was also an issue in the previous suit. The right of Sathyaseelan to inherit the property of Annamalai has been upheld and hence, the validity of adoption which was available as a ground to question the right of Sathyaseelan in the previous suit cannot be allowed in the present Appeal applying the principles of constructive resjudicata.

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The Courts below had found that the respondent is the lawful owner of the suit property and is in possession and enjoyment of the suit property on the basis of the revenue records and Sale Deed in his favour. It is not in dispute that the Patta stands in the name of the respondent's predecessor in interest. The revenue records, for a long number of years, stood only in the name of the respondent's predecessor in interest. After the Sale Deed obtained by the respondent, Patta was also transferred in the name of the respondent. The first defendant/appellant has not let in any evidence to show that he is in possession of the suit property. The two Sale Deeds, namely, the Sale Deed in favour of the appellant's vendor dated 16.05.1983 and the Sale Deed dated 15.11.1995 in favour of the appellant/first defendant are the only documents relied upon by the appellant/first defendant to prove his title and possession. The respondent claimed title under one Muthukaruppan Chettiyar and his name was found in S.L.R and other revenue records, as lawful owner.

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The case of the respondent is that after Muthukaruppan Chettiyar, his son Annamalai Chettiyar inherited the property. Similarly, after the death of Annamalai Chettiyar his adopted son Sathiya Seelan became the owner of the suit property, by succession. The respondent purchased the suit property from Sathiya Seelan.

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https://hcservices.ecourts.gov.in/hcservices/

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The case of the appellant/first defendant is to the effect that one Muthukaruppan Chettiyar is no doubt the original owner of

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the suit property, however, one Venkatachalam Chettiyar is the son of the said Muthukaruppan Chettiyar, whose name is found in S.L.R. From Venkatachalam Chettiyar, his son Padhinettam Chettiyar inherited the property and one Thirupathy Chettiyar was the son of Padhinettam Chettiyar. The further case of the appellant is that Thirupathy Chettiyar, the sole lineal descendant of Muthukaruppan Chettiyar sold the property to one Chinnandi from whom the appellant had purchased the property in the year 1995.

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The source of title for the two parties are different. This issue was also the subject matter of the previous suit in O.S.No.393 of 1987 on the file of the District Munsif Court, Sivagangai. The plaintiff therein is one Thirupathy Chettiyar, the predecessor in interest of the appellant/first defendant. In respect of yet another property of Muthukaruppan Chettiyar, the said Thirupathy Chettiyar filed a suit in O.S.No.393 of 1987 against Sathiya Seelan, the adopted son of Annamalai Chettiyar. The suit was dismissed with the following finding.

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“ ~thjp jug;gpy; (jpUg;gjp) Fwpg;gpLk; Kj;Jf;fUg;gd; nrl;bahh; vd;gth; thjpapd; ghl;ldhh; vd;W Fwpg;gpLtJ ep&gpf;fg;gltpy;iy. Rt Pfhuk; rk;ge;jg;gl;l Mtzk; jhf;fy ; nra;ag;glhtpl;lhYk; $l rj;jpar Pydpd; jfg;gdhh; mz;zhkiy nrl;bahh; vd;gij thjp jug;gpy; kWf;ftpy;iy. th.rh.M.5> 8y; rj;jpar Pydpd; jfg;gdhh; ngah; mz;zhkiyr; nrl;bahh; vd;gij thjp xg;Gf;nfhz;Ls;shh;. jhthr; nrhj;jpw;F 160k; vz; gl;lh ,Ue;jijNah> mJ Kj;Jf;fUg;gd; nrl;bahh; ngaUf;F ,Ue;jijNah cga jug;gpdh;fs; kWf;ftpy;iy. 2k; gpujpthjpf;F jhthr; nrhj;ij gp.rh.M.5d; % yk; fpiuak; nfhLj;j rj;jpar Pyd ; vd;gthpd; jfg;gdhh; ngah; mz;zhkiyr; nrl;bahh; vd;gJk;> mz;zhkiy nrl;bahhpd; jfg;gdhh; ngah; Kj;Jf;fUg;gd; nrl;bahh; vd;gJk; Kj;Jf;fUg;gd; nrl;bahhpd; jfg;gdhh; ngah; Mz;bag;g nrl;bahh; vd;gJk; gpujpthjpfs; jug;gpy; jhf;fyhd gp.rh.M.6> 8> 7> 26 kw;Wk; thjp jug;gpy; jhf;fyhd th.rh.M.5> 8ypUe;J njhpfpwJ. VdNt jhthr; nrhj;jpd; Mjp ghj;jp];juhd Kj;Jf;fUg;gd; nrl;bahh; 2k; gpujpthjpf;Ff; fpiuak; nfhLj;j

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rj;jpar Pydpd; Kd;Ndhh; vd;gJ ,t;tof;fpy; jhf;fyhd Nkw;nrhd;d Mtzq;fspypUe;J njspthfpwJ. vdNt gpujpthjpfs; jug;gpy; mspf;fg;gl;bUf;Fk; rhl;rpak; kw;Wk;

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https://hcservices.ecourts.gov.in/hcservices/

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Mtzq;fis Vw;W jhthr; nrhj;J 2k; gpujpthjpf;Fk;

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mtUf;Ff; fpiuak; nfhLj;j rj;jpar PyDf;Fk; ghj;jpakhdJ

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vd;W j Ph ;khdpf;fg;gLfpwJ.| ”

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The above extracted portion of the Judgment in O.S.No.393 of 1987 was considered by the Lower Appellate Court as the Judgment binding on the appellant. The issue arose for consideration in the earlier suit is whether Thirupathy Chettiyar, the predecessor in interest of the appellant is entitled to succeed to the estate of Muthukaruppan Chettiyar, as a lineal descendant of Muthukaruppan Chettiyar. Since it is not disputed that Sathiya Seelan is the lawful heir of Annamalai Chettiyar, the suit filed by Thirupathy Chettiyar was dismissed holding that the suit property belongs to Sathiya Seelan and then to the second defendant in the suit who purchased the subject matter of the suit from Sathiya Seelan. Since the matter directly and substantially interlinked with the earlier suit is whether Thirupathy Chettiyar, the predecessor in interest of the appellant is the lawful heir of Muthukaruppan Chettiyar, the original owner of the property and the issue was decided earlier in a lis between the predecessor in interest of the appellant and the predecessor in interest of the respondent/plaintiff, the Judgment in the previous suit will operate as res-judicata. It is to be noted that the ingredients for applying the principles of res-judicata are as follows:-

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a) The matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue in the former suit.

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b) The former suit must have been a suit between the same parties or between parties under whom the parties to the subsequent suit claim.

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c) The parties in the former suit must have litigated under the same title.

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d) The Court which decided the former suit must have been a competent Court to try the subsequent suit.

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e) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit.

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In the present case, from the portion extracted from the Judgment in O.S.No.393 of 1987, it is very clear that the issue focussed was regarding the title of Thirupathy to succeed to the estate of original owner Muthukaruppan Chettiyar as his lineal descendant and the same was finally decided against him and the Court which decided the earlier suit is competent to try the same. Since the plaintiff in the earlier suit and the first defendant in the present suit are litigating under the same title and the issue https://hcservices.ecourts.gov.in/hcservices/ that was raised by the appellant in the present suit was finally decided against the appellant's predecessor in interest in the previous suit, this Court has no hesitation to hold that the

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previous suit in O.S.No.393 of 1987 has become final and it will operate as res-judicata so as to prevent the appellant from claiming title as a purchaser from the vendee of Thirupathy Chettiyar.

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The submission of the learned counsel for the appellant relying upon the Section 42 and 43 of Indian Evidence Act is held misconceived. Section 40 of the Indian Evidence Act reads as under:-

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“40.Previous Judgments relevant to bar a second suit or trial. - The existence of any Judgment, order or decree which by law prevents any Court from taking cognizance of a suit or holding a trial is a relevant fact when the question is whether such Court ought to take cognizance of such suit, or to hold such trial.”

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The Judgment in the previous suit is admissible in evidence, to prove that the Judgment in the previous suit will operate as resjudicata, Section 11 of C.P.C., specifically bars second suit. Further, Section 43 of Indian Evidence Act, reads as under:-

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“Judgments, etc., other than those mentioned in Sections 40 to 42, when relevant.- Judgments, orders or decrees, other than those mentioned in Sections 40, 41 and 42 are irrelevant, unless the existence of such Judgment, order or decree, is a fact in issue, or is relevant under some other provisions of this Act.”

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Thus for the purpose of showing that an earlier Judgment of a competent Court operates as res-judicata and that the second suit is barred by virtue of Section 11 of C.P.C., the said fact can be established only by production of such Judgment or Decree. The submission of the learned counsel for the appellant is therefore wholly misconceived.

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The learned counsel for the appellant relied upon the Judgment of the Honourable Supreme Court reported in AIR 1971 SC 1865 (S.T.Khimchand V. Y.Satyam), for the proposition that marking of a document as an exhibit does not dispense with its proof. In the present case, the fact that the appellant's predecessor in interest filed a suit earlier and failed to establish his right as against the legal heir of Muthukaruppan Chettiyar is not disputed. The appellant himself has admitted the Judgment in the previous suit. In such circumstances, the https://hcservices.ecourts.gov.in/hcservices/ certified copy of a Judgment of Civil Court, between the predecessors in interest of the litigants in the present case, as

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specifically pleaded by the respondent is proved and the arguments of the learned counsel for the appellant is untenable.

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For the above reasons, the questions of law raised by the appellant in the present appeal and the points argued by the learned counsel for the appellant are unsustainable. The findings of the Court below are supported by material documents and evidence. The concurrent findings of fact cannot be interfered with by this Court unless the findings are perverse or without any material. The appellate Court has dealt with all the issues in the light of the pleadings and evidence of both sides independently and dismissed the appeal, after holding title and enjoyment in favour of the plaintiff.

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In the above circumstances, the Second Appeal is dismissed. However, there is no order as to cost.

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Sd/-

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Assistant Registrar(CS-I)

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/True copy/

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Sub Assistant Registrar

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The District Munsif, Sivagangai.

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The Subordinate Judge, Sivagangai.

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+1 cc to M/s.S.P.Kannan, Advocate in SR.No.52069

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pmu

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CSL/PV/04.11.2016: 8P/4C

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S.A.(MD)No.572 of 2016 12.09.2016

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https://hcservices.ecourts.gov.in/hcservices/

Kumaresan, v. a.Kasi

Case brief

What is this about?

What did the court decide?

Kumaresan, v. a.Kasi

Case brief

What is this about?

What did the court decide?

What the court decided

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