Ali Moidin Ravuthan And Ors. vs Elayachanidathil Kombi Achen And … on 3 May, 1882

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Madras High Court
Ali Moidin Ravuthan And Ors. vs Elayachanidathil Kombi Achen And … on 3 May, 1882
Equivalent citations: (1882) ILR 5 Mad 239
Author: M Ayyar
Bench: Innes, M Ayyar


Muttusami Ayyar, J.

1. The contest in this second appeal has reference to items of land 1, 2, 4, 5 and 6, in which alone appellants (defendants 4 to 7) are interested. The respondents (plaintiffs) alleged that those items had been demised on kanam in December 1856 to one Avulkadar Ravuthan, the brother of the second defendant and of the husband of the third defendant, under whom appellants claim by right of purchase. In Suit 19 of 1870 on the file of the District Munsif of Palghat, respondents’ Karnavan sued appellants’ vendors and others to redeem the same kanam, but that suit was dismissed on the ground that the equity of redemption as to all the lands which were then and are now sought to be recovered had been sold to one Anantakrishna Bhatta in execution of the decree in Suit No. 67 of 1869 on the file of the Principal Sadar Amin of Calicut. It appears that appellants’ vendors then pleaded that the right of redemption as to all the lands had passed to Anantakrishna Bhatta and that their contention prevailed. After that suit was dismissed the respondents repurchased the equity of redemption, and brought this suit to redeem the kanam of 1856. In answer to their present claim appellants denied the repurchase, and contended that only one of the lands claimed in Suit 19 of 1870 had been included in the sale to Anantakrishna Bhatta, and that respondents were not entitled to redeem the other lands.

2. On appeal the. District Judge found that respondents had proved the repurchase, and held that appellants were bound as regards their second plea by the finding in Suit 19 of 1870.

3. It is argued on second appeal that none of Exhibits (D to G) on which the Judge relied in proof of the repurchase was admissible in evidence, and that the question whether all or some of the lands now sought to be recovered were sold to Anantakrishna Bhatta is not res judioata. Exhibit I), which is a certified copy of a deposition given by respondents’ vendor in Suit 236 of 1878, contains an admission by him of the resale, and Exhibit G is copy of a receipt acknowledging payment of the bond executed in favour of the vendor as consideration for the resale and of the decree passed on that bond. It is contended for appellants that these exhibits ought not to have been admitted, as the vendor, who is alive, had not been called as a witness; but I do not think that this contention ought to be upheld. Anantakrishna Bhatta is respondents’ vendor, and as such is a party whose position in relation to the property now in dispute it is necessary to prove against appellants, and his admissions are therefore in the nature of original evidence and not hearsay, and on this ground I think they are legal evidence, though he is alive and has not been cited as a witness. As to the second ground of objection, it is to be observed that the plea of res judicata is a bar, under Section 13 of Act X of 1877, not only to the trial of a suit, but also to the trial of any one of the issues in a suit which may have been finally heard and determined, and which may form the ground or one of the grounds of the decision, and that it may bar the trial of such an issue, though the ground of action in the second suit is not the same as in the first; The words “litigating under the same title” do not refer, as contended for the appellants, to the identity of the ground of action, but mean that the question must have been raised and decided in the same right, that is to say, in the right of the parties to the second suit, and not in the right of a stranger whom they represented in the first suit as his executors or administrators, &c.; for the rule that res judicata may be pleaded in bar of the trial of an issue presupposes that the second suit is cognizable, which cannot be the case where the ground of action or the right which is sought to be enforced is the same.

4. This appeal, therefore, fails, and I would dismiss it with costs.

Innes, J.

5. I concur in the Judgment of Mr. Justice Muttusami Ayyar.

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