IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.12.2009
CORAM
THE HON'BLE MR.JUSTICE M.JEYAPAUL
S.A.No.1586 of 1995
1.Arumughasamy (Deceased)
2.A.Ponnuthai
3.M.Chitra
4.A.Kohilakrishnavani
5.A.Ganeshkumar
(Appellants 2 to 5 brought on record as Lrs of the deceased sole appellant vide order dated 27.8.2009 in C.M.P.No.808/09)
.. Appellants
vs.
Sobbiar & Palivithiar Gothiram
of 24 Manai Telugu Chettiar community
rep by
1.P.K.Velusamy Chettiar
2.V.N.Dharmaramalinga Chettiar .. Respondents
Appeal is filed against the judgment and decree passed in O.S.No.319/1989 dated 12.4.1993 on the file of the District Munisif, Pollachi reversed in A.S.No.77/93 on the file of the Sub Court, Udumalpet dt.13.7.1995.
For petitioner : Mr.Parthasarathy Senior Counsel
for Mr.Damodaran
For Respondents : Mr.S.V.Jayaraman Senior Counsel
for Mr.Nicholas
Judgment
The legal representatives of the deceased first defendant are the appellants here.
2. The suit is filed for declaration that the sale of suit property in favour of the first defendant by the second defendant on 21.2.1976 is void and not binding on the plaintiffs and consequently, directing the first defendant to deliver possession of the property to the plaintiffs. Mesne profit was also sought for.
3. The plaintiffs have contended that the suit property originally belonged to Vengidusamy Chettiar, Arunachala Chettiar and ThaiyalNayagi Ammal, who belong to Sobbiar Gothram, a sub sect of 24 manai Telugu Chettiar. They created trust in respect of the suit property under the Registered Trust Deed, dated 27.1.1961. Under the trust deed, the aforesaid three persons dedicated suit properties for the purpose of constructing a temple for Angalaparameswari which is a family deity of Sobbiar and Palivithiar subsect of 24 manai Telugu Chettiar Vengidusamy. One of the donors of the trust became the first trustee of the trust. After the demise of Vengidusamy, the management of the trust came to be shouldered by the second defendant. The second defendant was in possession of the suit property as a trustee. The second defendant had no authority to sell the trust property which was dedicated for a specific purpose. But the second defendant acted as against the interest of the trust and sold away the suit property to the first defendant on 21.12.1976 contrary to the terms of the trust. There was no necessity to sell the trust properties. Its worth is more than Rs.500 per cent as on the date of alienation. The Hindu Religious and Charitable Endowment Board has no right to permit the second defendant to sell the property. The permission granted by Hindu Religious and Charitable Endowment Commissioner is not valid in law. The suit is filed in the representative capacity by the plaintiffs, who belong to Sobbiar and Palivithiar subsect of 24 manai Telugu Chettiar caste. They have right to protect the interest of the entire community and the trust. Hence, the suit for the aforesaid relief.
4. The second defendant remained exparte. The first defendant has filed written statement alleging that the temple was never built from 1961 to 1976 by any of the trustees. Neither Vengidusamy nor any other member of the community evinced interest in constructing the temple. The trustees felt that the existing temple itself could be managed with renovation, if any. The second defendant alienated the property of the trust with full knowledge of the members of the community. No income was derived from the wasteland. Therefore, the second defendant sought permission from the Hindu Religious & Charitable Endowment authorities. They granted permission after due verification and proper enquiry. The first defendant is a bonafide purchaser for valuable consideration. The suit filed without questioning the orders of the Hindu Religious & Charitable Endowment authorities is not maintainable. The suit is liable to be dismissed for non joinder of Hindu Religious & Charitable Endowment authorities, who passed orders permitting the second defendant to alienate the trust property. Shri AngalaParameswari trust had already filed the suit in O.S.No.111 of 1987 before the very same Court seeking similar relief and the same was pending. Hence, the first defendant sought for dismissal of the suit with cost.
5. Having adverted to the evidence on record the trial court held that the plaintiff should have taken steps to implead themselves as parties to the earlier suit in O.S.No.111 of 1987. The plaintiffs without challenging the order Ex.B.9 passed by the Hindu Religious & Charitable Endowment authorities cannot question the order in the Civil Court. Therefore, the Trial Court has held that the plaintiffs are not entitled to declaration or for consequential prayer for delivery of possession.
6. The first appellate Court substantially held that in as much as the plaintiffs were not parties to the earlier suit in O.S.No.111 of 1987, the principle of Res Judicata will not have any application. Further, the plaintiff trust is a private trust and therefore, the Hindu Religious & Charitable Endowment authorities do not have any authority to grant permission. Having thus found that the first Appellate Court upset the Judgment of the Trial Court and decreed the suit.
7.At the time of admission of the second appeal, the following substantial question of law was formulated:
"whether the judgment of the lower appellate court is vitiated by its failure to consider the entire evidence on record and apply the correct principles of law"
8. Learned counsel appearing for the appellant/first defendant would submit that no issue was framed by the Trial Court as to whether the suit trust was a private trust or a public trust. Therefore, the first Appellate Court had travelled beyond the brief and held that the suit trust was a private trust. It is his further submission that the Hindu Religious & Charitable Endowment authorities having adverted to the right to alienate the suit property accorded permission invoking the provision of Section 32 of Hindu Religious & Charitable Endowment. The said order was not put to challenge separately by the plaintiffs. The very fact that the Angala Parameswari temple was not built for so many years right from 1961 to 1976 would go to show that there was no intention on the part of the trustees to build any Angala Parameswari temple. The two other persons representing the very same community filed the suit in O.S.No.111 of 1987 challenging the alienation made by the second defendant in favour of the first defendant with respect to the property and the same was negatived by the Court. As similar issues arisen in the said suit was already determined, the present suit is hit by the principles of Res Judicata. Therefore, he would submit that the first Appellate Court has misdirected itself and came to a wrong decision.
9. Learned Senior Counsel appearing for the respondents/plaintiffs would submit that the very admission of the second respondent would go a long way to show that the suit trust is a private trust. Therefore, the Hindu Religious & Charitable Endowment Board has no authority to deal with the private trust property. It is his further submission that in as much as the Hindu Religious & Charitable Endowment board has no jurisdiction to give any permission to sell the private trust property, no challenge against that order was called for. The first defendant cannot be a bonafide purchaser in as much as he having adverted to Ex.A1 trust deed under which the trust was created for the sole purpose of constructing Angala Parameswari temple chose to purchase the property despite the negative clause found under the trust Deed. The earlier suit was filed by the trust represented by its two next friends whereas the present suit was filed by the community represented by two persons. Therefore, both the parties cannot be treated as same party so as to attract the provision under Section 11 of the Code of Civil Procedure. The principle of Res Judicata will not apply to the facts and circumstances of the case he would finally submit.
10. It is found that there was no issue framed by the Trial Court as to whether the suit trust was a private trust or a public trust. Therefore, the parties cannot be expected to lead evidence touching upon the character of the trust which was not an issue. Therefore, the finding rendered by the first Appellate Court with respect to the status of the trust when there was no issue relating there to cannot be sustained.
11. The main point to be decided by the Court is whether the present suit is hit by the principles of Res Judicata. Let me straight away refer to the provision under Section 11 and Explanation VI of the Code of Civil Procedure.
"Res Judicata:- No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
...........................................
Explanation VI: Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purpose of this section, be deemed to claim under the persons so litigating.”
12. There is no dispute to the fact that 2 persons belonging to Sobbiar and Palivithiar sect of 24 manai Telugu Chettiar denomination filed earlier suit in O.S.No.111/1987 representing the trust challenging the very same alienation made by the second defendant in favour of the first defendant, arraying the Hindu Religious & Charitable Endowment authorities also as one of the defendants in the said suit. Ex.B1 to B4 are the pleadings submitted by rival parties in the said suit in O.S.No.111/1987 before the very same Trial Court namely District Munsif Court,Pollachi. Ex.B.5 and Ex.B.6 are the judgment and decree passed by the Trial Court and Ex.B.7 and Ex.B.8 are the judgment and decree passed by the first Appellate Court. The fact remains that no second appeal was preferred as against the aforesaid judgment passed by the first Appellate Court in the earlier suit relating to the very same property.
13. The present suit has been filed by 2 persons representing the community belonging to Sobbiar and Palivithiar sect of 24 manai Telugu Chettiar challenging the very same alienation with respect to the suit property made by the second defendant in favour of the first defendant in the guise of permission under Ex.B.9 granted by the Commissioner, Hindu Religious & Charitable Endowment. The suit in O.S.No.111/1987 is found to be the earlier suit and the same was decided earlier to the present suit. The very same issues arisen in the present suit were directly and substantially in issue in O.S.No.111/1987. The plaintiffs in the present suit and the plaintiffs in the earlier suit have been litigating in respect of the public right revolving around the trust property. They have made their claim in this suit in common not only for themselves but also for their own community people, who have interest in the plaintiff trust. Though two persons representing the present suit are literally different from the two persons representing the earlier suit, as they have been litigating with respect to a public right in the trust in common for themselves and others in the very same community, it is deemed that the two persons, who has laid the present suit have been litigating only under the two persons, who had already litigated the suit in O.S.No.111 of 1987.
14. The Supreme Court in Narayana Prabhu Venkateswara Prabhu Vs. Narayana Prabhu Krishna Prabhu (dead) by L.Rs.,AIR 1977 SC 1268 has held as follows:
“We think that the submission made by the learned counsel for the respondents is sound. In a partition suit each party claiming that the property is joint, asserts a right and litigates under a title which is common to others who make identical claims. It that very issue is litigated in another suit and decided we do not see why the others making the same claim cannot be held to be claiming a right “in common for themselves and others”. Each of them can be deemed, by reason of explanation VI, to represent all those the nature of whose claims and interests are common or identical. If we were to hold otherwise, it would necessarily mean that there would be two inconsistent decrees. One of the tests in deciding whether the doctrine or res judicata applies to a particular case or not is to determine whether two inconsistent decrees will come into existence if it is not applied. We think this will be the case here.”
15. A different set of joint owners cannot lay a different partition suit, when other set of joint owners had already laid a partition suit litigating similar issues as otherwise there would exist two inconsistent decrees. One set of joint owners who had already made a claim in a suit could be treated as persons, who were litigating in common for themselves and others by reason of the explanation 6 to Section 11 of Code of Civil Procedure, it has been ruled therein.
16. No one representing an organization can be permitted to litigate when some other person representing the very same organization had already litigated the suit involving the very same issues.
17. In the instant case Exs. B1 to B8 would go to establish that the very same substantial issues raised by two other representatives of the very same community Sobbiar sect and Palivithiyar sect of 24 manai Telugu Chettiar in O.S.No.111/87 were already answered by the Trial Court and the said suit also reached finality at the first Appellate Court stage itself. Therefore, two sets of other people belonging to the very same community cannot litigate the very same substantial issues which had already been determined in the previously instituted suit.
18. Though the persons representing the community are virtually different in both the suits as per explanation VI to Section 11 of the Code of Civil Procedure, the present set of persons representing the community would be deemed to claim under the other set of persons who already litigated on the very same substantial issues. Therefore, the submission made by the learned senior counsel appearing for the respondents/plaintiffs that the persons, who have presently filed the suit are not the very same persons, who had filed earlier in O.S.No.111/1987 is not acceptable to the Court. The principles of Res Judicata adumbrated under Section 11 of Code of Civil Procedure squarely applies to the case on hand as the very same issues substantially involved in the present suit had already been determined in the earlier suit laid by a different set of persons from the very same community.
19. The appellate Court has misdirected itself with respect to the aforesaid question of law. Therefore, the first Appellate Court’s Judgment calls for interference.
20. In view of the above facts and circumstances, confirming the judgment of the Trial Court and setting aside the Judgment of the first appellate Court, the appeal is allowed. There is no order as to costs.
kua
To
1.District Munisif, Pollachi
2. Sub Court,
Udumalpet