In a second appeal regarding recovery of possession and injunction over poramboke land, the High Court held that res judicata barred the appeal because cross-suits involved the same subject matter. The Court also held an unregistered mortgage by the husband bound the wife.
Second Appeal dismissed; no costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on: 10.08.2018 Delivered on: 22.01.2019
CORAM
THE HONOURABLE Mr.JUSTICE P.RAJAMANICKAM
S.A.No.1938 of 2002
Panneer Selvam ... appellant/1 st defendant
Vs.
1.Meharunnissa,
rep.by Power Agent,
Kamaraj.
2.Balu
3.Shanthi ...Respondents/ Respondents
PRAYER: Second Appeal filed under Section 100 of C.P.C.,
against the judgment and decree of the Additional
Subordinate Court, Mayiladuthurai dated 12.09.2001 in
A.S.No.98 of 1999 confirming the judgment and decree of the
District Munsif Court, Sirkali dated 29.09.1999 in
O.S.No.302 of 1994.
For Appellant : Mr.S.Sounthar
For Respondents : R1 and R3 NA
R2- Notice dispensed with
JUDGMENT
This Second Appeal has been filed by the first defendant against the judgment and decree passed by the Additional Sub Judge, Mayiladuthurai, in A.S.No.98 of 1999 dated 12.09.2001 confirming the judgment and decree passed by the District Munsif Court, Sirkali in O.S.No.302 of 1994 dated 29.09.1999.
to restrain the first respondent herein by means of permanent injunction from interfering with his peaceful possession and enjoyment of the suit property.
The suit property is classified as Government Poramboke land. The plaintiff had occupied the same 30 years ago and recognizing her possession, the Government had issued B-memos. The plaintiff had put up a thatched superstructure and paying the house tax. She has also obtained electricity connection to the suit property. The first defendant appears to have paid a sum of Rs.6,000/- to the plaintiff's husband Dasthagir and entered into possession of the suit property. The said agreement seems to have been entered into on 02.03.1991 and the said agreement was to be in force for 3 years. The plaintiff was not aware of the aforesaid arrangements as she was in other shores. The plaintiff's husband Dasthagir died in May, 1992. The plaintiff received summons in the suit in
O.S.No.195 of 1992 instituted by the first defendant as plaintiff. In the said suit the first defendant as plaintiff had produced a xerox copy of the alleged agreement between him and the said Dasthagir. Only thereafter, the plaintiff came to know of the contends of the arrangements which had been made between her husband and the first defendant. Eventhough the arrangement between the first defendant and the said Dasthagir is not binding on the plaintiff, to avoid unnecessary contentions and to purchase peace, she through her power-agent, tendered Rs.6,000/- to the first defendant on 04.08.1994, but he refused to receive the same. Hence, the plaintiff had filed the above suit for recovery of possession based on her possessory-title.
(a) The power agent is not entitled to maintain the suit on behalf of the plaintiff. The first defendant obtained the possession of the suit property from one Dasthagir under a document dated 02.08.1991 after the payment of Rs.6,000/- to the said Dasthagir. The said Dasthagir authorized the first defendant to make improvements in the suit property. The said Dasthagir assured that he would pay the cost of all improvements that would be made by the first defendant. The terms of the said document was binding upon the plaintiff. The plaintiff cannot shirk her liability when she claims right under the said Dasthagir. The first defendant had made improvements through the third defendant to the tune of Rs.20,000/-. The defendants 1 and 3 had extended the construction by putting up new cross walls and side walls and had also done flooring works in the suit property and thus a sum of Rs.20,000/- was spent upon the suit property.
(b) The third defendant is a tenant under the first defendant, he agreed to pay a sum of Rs.150/- as a rent per month. The third defendant is entitled to the benefits of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Hence, the suit for recovery of possession is not maintainable. The second defendant is an unnecessary party. The allegations that the defendants are trespassers is not sustainable. The suit has not been properly valued and the suit as framed is not maintainable. Therefore, the defendants 1 and 3 prayed to dismiss the above suit.
District Munsif, Sirkali had framed necessary issues and tried the suit in O.S.No.195 of 1992 and O.S.No.302 of 1994 jointly. Evidence was recorded in O.S.No.302 of 1994 and the same was treated as evidence in O.S.No.195 of 1992. During trial on the side of the plaintiff, the plaintiff was examined as PW1 and Ex.A1 to Exs.A14 were marked as exhibits. On the side of the defendants, the first defendant examined himself as DW1 and he also examined three more witnesses as DW2 to DW4. They have marked Ex.B1 as exhibit on their side.
" a) Whether the Lower Appellate Court is right in holding that findings in O.S.No.195 of 1992 will operate as resjudicata against appeal filed by appellant challenging decree passed in O.S.No.302 of 1994, when issues involved in both the suits are different?
b) Whether the Courts below are right in holding Ex.B1, usufructory mortgage executed by husband of first respondent/plaintiff will not be binding on her overlooking Section 41 of the Transfer of Property Act?
c) Whether the Courts below are right in holding that the first respondent is entitled to recover possession even without paying improvement cost to the appellant, who is in any event, entitled to compensation as holder of defective title?"
below failed to see, in any event, the first respondent cannot recover possession of the suit property without paying the cost for improvements made by the appellant in view of the Section 51 of the Transfer of Property Act. He further submitted that the first Appellate Court erred in holding that findings in O.S.No.195 of 1992 would operate as resjudicata against appeal filed by the appellant challenging the decree passed in O.S.No.302 of 1994, when issues involved in both the suits were different and therefore, he prayed to allow the second appeal and set aside the judgment and decree passed by the Courts below and dismiss the suit in O.S.No.302 of 1994.
"...Non-registration or invalid registration. Right of mortgagor to recover possession. It is clear, that where the mortgage deed is not registered and the mortgagee, although he acquires possession yet he acquires no right in the immovable property as mortgagee; he remains in possession without title, and it is open to the mortgagor to file a suit for recovery of possession of the property based on his title. In such a case, it may be open to the defendant to plead that the advanced moneys, which though advanced on an invalid mortgage, must in equity be repaid to him before the plaintiff takes back possession of the property.”
Therefore, the findings of the Courts below that the first defendant cannot seek relief based on Ex.B1 on the ground that it is an unregistered document and also it was not binding upon the plaintiff, as it was not executed by her are not correct.
“6. It cannot be denied that the subjectmatter of the two cross-suits in the present case was precisely the same, namely, the conduct of the business of the tailoring mart, although the reliefs claimed in the two suits were, understandably different, injunction being asked for in the one case and possession being asked for in the other. This difference, however, in the reliefs asked for, cannot make
for any difference in the application of the rule of res judicata, since in both the suits the question that was directly and substantially in issue was the same. In these events, the learned Subordinate Judge ought to have held that an appeal against one of the decree alone would be clearly barred under Section 11 of the Code. He was not right in proceeding to dispose of the appeal on merits.”
3 issues framed by the court
Whether findings in a joint suit involving injunction operate as res judicata in a cross-suit involving recovery of possession?
Whether an unregistered mortgage deed executed by the husband binds the wife as the real owner of the property?
Whether a mortgagor claiming possession on title must repay mortgage money to a mortgagee in possession under an unregistered mortgage?
Colour shows how this judgement treated each authority
K. Sarjamoideen Vs. K. Moideen Batcha and othersApplied¶20
K. Sarjamoideen Vs. K. Moideen Batcha and others, AIR 1979 Madras 155 · Who else cites this
5 provisions across 3 enactments
Panneer Selvam
Meharunnissa
Balu
Shanthi
P. Rajamanickam
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
