In a property dispute involving two connected suits, the High Court held that the appellant's second appeal is barred by res judicata because he failed to file an appeal against the dismissal of his own suit in the joint trial.
Second appeal dismissed; judgment and decree of the first appellate court confirmed.
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 : 07.01.2020
Date of Verdict : 22.01.2020
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
S.A.No.1449 of 1996
M.Kaliamurthy ...Appellant
Vs.
1. Ramaswamy Pillai (Deceased)
2. Kaveri Ammal (Died)
3. Thillai Ammal
4. Kalaimani
5. G.R.A.Indira
6. Ambika
7. Ilamathi
8. Selvi
(Respondents 3 to 8
brought on record as
legal heirs of the deceased
first respondent vide order
of the Court dated 23.04.2014
made in C.M.P.Nos. 8460 of
2002 in S.A.No. 1449 of 1996)
9. R.Pakkiri
10.R.Pandiyan
(Respondents 9 and 10
brought on record as
legal heirs of the deceased
second respondent vide order
of the Court dated 18.12.2019
made in C.M.P.Nos. 7940 of
2016 in S.A.No. 1449 of 1996) ...Respondents
Prayer :- This Second Appeal is filed under Section 100 of
Civil Procedure Code against the judgment and decree dated
28.06.1996 made in A.S.No.23 of 1992 on the file of the
Additional Subordinate Court, Mailaduthurai, reversing the
judgment and decree dated 30.12.1991 made in O.S.No.602 of
1988 on the file of the District Munsif Court, Mailaduthurai.
For Appellant : Mr.A.Muthukumar For Respondents R1 & R2 : Died For R3 to R10 : Mr.R.Ramanlal
JUDGMENT
This second appeal is directed as against the judgment and decree dated 28.06.1996 made in A.S.No.23 of 1992 on the file of the Additional Subordinate Court, Mailaduthurai, thereby reversing the judgment and decree dated 30.12.1991 made in O.S.No.602 of 1988 on the file of the District Munsif Court, Mailaduthurai.
3.1. The suit is filed for recovery of possession and injunction. The plaintiffs are the owners of the land ad measuring 17 cents comprised in R.S.No.384/3 situated at Kollumangudy Village. The suit property originally belonged to one Narayanaswamy and his two sons Muthusamy Iyer and Sundaresa Iyer. The suit property is bounded on the east by street, south by road leading to Kumbakonam, north by Ayyasamy house and western by the house belonging to Panneerselvam, comprised in the same survey number. The defendant's predecessors in-interest were Paguthidhar of a portion of the suit property roughly about 2 to 3 kulis on the south-eastern corner. The same is indicated in the plan as ABCD attached to the plaint. The defendant has been permitted to occupy the same for the monthly Paguthi of Rs.1/-. The defendant's predecessors have put up super structure and the same was purchased by the father of the defendant on the same terms of paguthi by a registered sale deed dated 07.09.1936.
3.2. The said Narayanasamy Iyer conveyed entire property in favour of the first plaintiff's brother on 01.01.1971. On the date of purchase, the defendant's father was occupying the said 3 kulies on the south-eastern corner as a tenant under the said Narayanasamy. After the purchase by the brother of the first plaintiff, the father of the defendant was paying paguthi (gFjp) at irregular intervals. Though the said property was purchased in the name of the bother of the first plaintiff, it belonged to the joint family, consisting of his two brothers viz., Ramaswamy Pillai and Natesa Pillai. Ramsawamy Pillai is the first plaintiff and his brother viz., Natesa Pillai died. Therefore, his legal heirs are represented as the plaintiffs 2 to 4.
3.3. There was an arrangement between them by karaiolai, in which the plaintiffs are alone allotted the suit property under A,B,D and C schedule property respectively. ABEFGD portion marked in the plaint is the entire extent of 17 cents. The portion which is marked as ABCD is occupied by the defendant. The remaining portion BEFGDC in the plan is under the occupation of the plaintiffs. Therefore the plaintiffs made request to the defendant to vacate the premises marked as https://hcservices.ecourts.gov.in/hcservices/ ABCD after removing the super structure and hand over the
possession. But the defendant was postponing the same and also there was a due for a sum of Rs.80/- from the defendant towards paguthi (gFjp) for the portion occupied by him. But the defendant did not response to the request and he filed suit for injunction in O.S.No.566 of 1987 on the file of the District Munsif Court, Mailaduthurai, as against the plaintiffs in respect of his occupied portion, which is marked as ABCD in the plan.
3.4. Therefore, the first plaintiff caused legal notice on 14.03.1988 thereby call upon him to surrender possession of the said ABCD portion in the plan. After receipt of the same, there was no reply form the defendant. In fact, again on 16.09.1988, the defendant was tried to encroach BEFGDC portion annexed to the portion of ABCD. Hence the plaintiffs filed the present suit for recovery and possession in respect of ABCD marked in the plan annexed to the plaint and injunction in respect of the entire property which is marked as ABEFGD in the plan annexed to the plaint.
formulated for consideration:-
"1. Whether the finding of the lower Court on the question of the benefits claimed by the appellant under Tamilnadu Occupants of Kudiyiruppu (Conferment of Ownership) Act, 1971 is erroneous?
7.1. He further submitted that Section 3 of Tamil Nadu Occupants of Kudiyiruppu (Conferment of Ownership) Act, 1971 protects the interest of the defendant as such he is entitled to get benefit under the said Act. In fact, Section 8 of Tamilnadu Rural Artisans Act 1976 defined the agriculturalist and the defendant is well within the definition as such, he is entitled to get the benefits under the Tamil Nadu Occupants of Kudiyiruppu (Conferment of Ownership) Act, 1971. He also relied upon the following reported judgments :-
judgment and decree and dismissed both the suits filed by the plaintiffs as well as defendant. Aggrieved by the same, the plaintiffs alone preferred an appeal in A.S.No.23 of 1992 and the same was allowed in favour of the plaintiffs and their suit was decreed. The defendant did not file any appeal as against dismissal of his suit. Therefore, directly resjudicata would operate as against the defendant and he is not entitled for any relief in this appeal. The defendant without preferring any appeal suit as against the dismissal of his suit, he cannot get any benefit under Tamil Nadu Occupants of Kudiyiruppu (Conferment of Ownership) Act, 1971, since the resjudicata would operate against the defendant. In this regard, he relied upon the following reported judgment of this
Court :-
"8. It is also seen from para 22 of the judgment of the lower appellate court, relying upon Fathima Bibi Ammal .vs. A.A.Mohammed Mohideen and others that in a case of joint trial of two suits between the same parties and if an appeal is filed against only one decree, the other decree operates as res judicata. It is only under such circumstance, the lower appellate court came to the conclusion that as no appeal has been filed, the judgment add decree in O.S. No. 487 of 1983 will operate as res judicata. Hence, I am of the view that the finding given by the lower appellate court is proper and correct and no interference is called for."
"11. Learned counsel for the respondent raised a legal plea to the effect that the present appeal is also barred by res judicata on the ground that the appellant had not preferred any appeal in respect of the two connected matters, namely, O.S.No. 176 of 1988 and O.S. 80 of 1992. As adverted to, the appellant was the plaintiff in the other two suits and they also relate to the same subject matter of the property covered in O.S.No. 388 of 1988. There is a clear finding against the appellant in respect of the other two suits also and when once the appellant failed to prefer any appeal against the other two judgments, naturally the present appeal also would be barred on the principles of res judicata. In support of his contention, reliance is placed upon the decision reported in Premier Tyres Ltd., v. Kerala State Road Transport Corporation, 1993 Supp (2) SCC 146."
injunction in the other, the question that was directly and substantially in issue in both the suits was whether the sale deed dated 19.5.1983 is valid and it was found to be valid by the learned Subordinate Judge. The first appellant, not having preferred an appeal against the decree in O.S.No.20 of 1986, has preferred this appeal against O.S.No.27 of 1985 and it is liable to be dismissed on the ground that the finding in O.S.No.20 of 1986 is final and binding on the parties.
In the above judgements, this Court held that when the appellant did not prefer any appeal in respect of the two connected matters related to the same subject matters of the suit property, and when once the appellant failed to prefer appeal against the other suit, naturally the present appeal also would be barred on the principles of resjudicata.
O.S.No.566 of 1987. Hence, it has to be concluded that two connected suits have been tried together and the findings recorded in the one suit have become final, in the absence of an appeal, the appeal preferred against the findings recorded in the other suit would definitely be barred by the principles of resjudicata. Therefore, on this ground, the appeal fails and it is liable to be dismissed.
2 issues framed by the court
In a joint trial of two suits involving the same property, whether an appeal against one decree is barred by res judicata when no appeal was filed against the other decree.
Whether the defendant is entitled to benefits under the Tamil Nadu Occupants of Kudiyiruppu (Conferment of Ownership) Act, 1971.
Colour shows how this judgement treated each authority
Thangavelu Naicker Vs. Muthukumara Chettiar and anrReferred¶27
1979 (2) MLJ 369
Sundararaj Vs. R.Manoharan and 10 orsFollowed¶34
2002 (4) CTC 94
K.A.Perumalsamy Vs. A.Kandasamy & anrFollowed¶36
2001 (2) TNLJ 216
Premier Tyres Ltd., v. Kerala State Road Transport CorporationReferred¶36
Premier Tyres Ltd., v. Kerala State Road Transport Corporation, 1993 Supp (2) SCC 146 · Who else cites this
Renganayaki and another Vs. K.R.Renganatha MudaliarFollowed¶37
2001 (1) CTC 222
Fathima Bibi Ammal .vs. A.A.Mohammed Mohideen and othersReferred¶34
Fathima Bibi Ammal .vs. A.A.Mohammed Mohideen and others
M.Kaliamurthy
Ramaswamy Pillai
Kaveri Ammal
Thillai Ammal
Kalaimani
G.R.A.Indira
G.K.ILANTHIRAIYAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
