IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 18.02.2008 CORAM: THE HON'BLE MR. JUSTICE K.MOHAN RAM Second Appeal No.1312 of 2006 and M.P.No.1 of 2006 Ganesa Pillai .. Appellant -Vs- 1.Anjappan 2.Velusamy 3.Arumugam .. Respondents APPEAL against the judgment and decree dated 29.09.2006 made in A.S.No.36 of 2006 on the file of the Sub-Court, Nagapattinam, reversing the judgment and decree dated 24.07.2006 on the file of the District Munsif Court, Nagapttinam. For Appellant : Mr. Srinath Sridevan For Respondents : Mr. A.Ilango - - - J U D G M E N T
The unsuccessful defendant in O.S.No.310 of 2002 on the file of the District Munsif Court, Nagapattinam, who was successful in the suit but was unsuccessful in A.S.No.36 of 2006 on the file of the Sub Court, Nagapattinam, has preferred the above second appeal.
2. For the sake of convenience the parties are referred to as per their ranking in the suit.
3. The case of the plaintiffs is that under a registered sale deed dated 28.10.1953 the plaintiffs’ father-Appaswamy Pillai purchased an extent of one acre out of a total extent of 2.72 acres comprised in Survey No.369/1 from one Narayana Iyengar and his sons and the property is fully described in the plaint schedule; under the same sale deed some other properties were also purchased; from the date of such purchase the property continued to be in possession of their father and after his death with the plaintiffs; Appaswamy Pillai died intestate on 07.11.1994 leaving the plaintiffs and others as his legal heirs; an extent of 1.72 acres in S.F.No.369/1 was purchased by the defandant’s father-Muthuswamy Pillai on the same date i.e., on 28.10.1953 and the same lies on the east of the suit property; the property was purchased by the defendant’s father from the same vendor; the property purchased by the plaintiffs’ father was sub-divided as S.F.No.369/1A and patta No.12 was issued; for the said patta the father of the plaintiffs and thereafter the plaintiffs are paying kist and they are in possession of the suit property; while so the defendant filed a suit in O.S.No.99 of 1986 before the District Munsif Court, Thiruthuraipoondi, against the plaintiffs and their father claiming a decree for permanent injunction in respect of the entire extent of 2.74 acres in Survey No.369/1 claiming that he was in possession of the entire extent and alleging interference by the plaintiffs and their father; the suit was contested by the plaintiffs and their father and while the suit was pending Appaswamy Pillai died on 07.11.1994 and by the judgment and decree dated 19.03.1997 the suit was dismissed and the appeal filed thereagainst by the defendant herein in A.S.No.79 of 1998 was also dismissed by the Principal Sub Court, Nagapattinam, by the judgment and decree dated 26.10.1998.
4. Both the Courts have held that the defendant herein has no title to the entire extent of 2.72 acres but is entitled only to an extent of 1.72 acres and the defendant is not in possession of the entire extent of 2.72 acres and the plaintiffs herein are in possession of an extent of 1.00 acre. It is the further case of the plaintiffs that in the year 1990 the plaintiffs have raised Casurenia trees and when the same was ready for cutting the defendant tried to trespass into the suit property and tried to cut and carry away the trees on 22.11.2002 but the attempt of the defendant was prevented but since the defendant is a powerful person in that area a suit has been filed seeking for a decree for permanent injunction.
5. The said suit was contested by the defendant interalia contenting that the entire extent of 2.74 acres in Survey No.369/1 originally belonged to the defendant’s father-Muthuswamy Pillai and thereafter to the defendant and the defendant is in possession and enjoyment of the same; it is not correct to state that the father of the plaintiffs was granted for patta in respect of an extent of 1.00 acre and he was in possession of the same; at the request of the father of the plaintiffs, the defendant’s father paid a sum of Rs.1,000/- towards the sale consideration and hence the father of the plaintiffs entrusted possession of 1.00 acre purchased by him to the defandant’s father; Muthuswamy Pillai had married the sister of Appaswamy Pillai and hence no document was got executed; Patta No.111 was issued in the name of Muthuswamy Pillai in respect of the entire extent of 2.74 acres; patta No.108 was issued in respect of an extent of 7.12 acres in favour of Appaswamy Pillai; neither the plaintiffs nor their father have got any right or possession over the suit property; the prayer in the suit O.S.No.99 of 1986 came to be dismissed only on the ground that patta had not been issued in favour of Muthuswamy Pillai in respect of the entire extent and the suit has been paid without seeking declaration of title and for the sake of convenience only east-west ridge has been laid by the defendant; the plaintiffs’ father have no right or possession over the property hence the suit is liable to be dismissed.
6. The trial court framed the following issues, namely:-
(i)Whether on the date of suit, the suit property was in possession of the plaintiffs?
(ii)Whether the plaintiffs are entitled for a decree for permanent injunction?
(iii)To what other reliefs the plaintiffs are entitled to?
7. On the aforesaid issues the parties went into trial and in the trial the first plaintiff was examined as P.W.1 and Exs.A-1 to A-16 have been marked and on the side of the defendant the defendant was examined as D.W.1 and two other witnesses were examined and Exs.B-1 to B-11 have been marked. The Commissioner’s report has been marked as Ex.C-1 and the Commissioner has been examined as C.W.1. On a consideration of the oral and documentary evidence adduced in the case the trial court dismissed the suit. Aggrieved by that the defendant preferred an appeal before the Principal Sub-Court, Nagapattinam, in A.S.No.36 of 2002. The lower appellate court on an indepedent consideration of the oral and documentary evidence adduced in the case and the reasonings of the trial court reversed the judgment and decree of the trial court and decreed the suit as prayed for. Being aggrieved by that the defendant has filed the above second appeal as aforesaid.
8. The above second appeal has been admitted on the following substantial questions of law:-
“1) Whether a suit for permanent injunction will lie when the title over the suit property is in dispute?
2) Whether the dismissal of the previous suit for injunction filed by the present defendant will automatically give title and possession to the plaintiffs in the present suit?
3) Whether the Kist receipts, Patta, Adangal will not prove the possession of the property by the Defendant as on date of the suit?”
9. When the above second appeal was taken up for final disposal the learned counsel for the respondents submitted that though the above substantial questions of law have been framed while admitting the above appeal, in fact they cannot be construed to be substantial questions of law at all and the substantial question of law that really arises for consideration in the above second appeal is, namely:-
“Whether the present suit filed by the defendant is barred by resjudicata in view of the judgment and decree passed in O.S.No.99 of 1986 by the District Munsif Court, Thiruthuraipoondi, as confirmed by the Principal Sub Court, Nagapattinam, in A.S.No.79 of 1998?.”
10. Therefore the said substantial question of law has been framed after putting the learned counsel for the appellant on notice and if the question of resjudicata is decided in favour of the respondent then the necessity to decide the other substantial questions of law will not arise.
11. Learned counsel for the appellant submitted that the judgment and decree passed in O.S.No.99 of 1986 on the file of the District Munsif Court, Thiruthuraipoondi, and the judgment rendered in A.S.No.79 of 1998 by the Principal Sub-Court, Nagapattinam, have been marked as Exs.A-1 and A-3 respectively in the present suit. He further submitted that in Ex.A-3-judgment the Sub-Court, Nagapattinam, observed and held as under:-
“The Appellant has failed to prove that the Patta was issued to the Appellant under Inam Abolition Act. Further Ex.A2 to E.A12 did not disclose any right of the Plaintiff in the suit property. Therefore, no document filed by the Plaintiff would show that the Plaintiff has any right in respect of the suit property. Therefore, I hold that the Plaintiff has failed to prove that he has any right in the suit property. Further from the UDR Patta issued in favour of the Plaintiff, Chitta, Adangal and Kist Receipts it cannot be held that the Plaintiff has any right. Therefore, I find that the finding of the Trial Court that the documents filed by the Plaintiff did not disclose any right, is a correct conclusion. Ex.B1 and Ex.B2 filed by the Defendant pertains to Survey No.369/1. According to Ex.B1, the 1st Defendandant’s father purchased one acre of the property from the previous owner, Narayana Iyengar. Ex.B2 is the sale deed by Narayana Iyengar to the Plaintiff’s father. Both documents are dated 28.10.1953. Therefore it is seen that both Plaintiff’s father and the Defendant’s father purchased properties from the previous owner Narayana Iyengar. From the boundaries given in the schedule of the property in the sale deeds, the sale deed of the Defendant’s father shows that the eastern boundary is Muthusamy Pillai’s land and the sale deed of the Plaintiff’s father shows that the western boundary is the land of Appuswamy. Therefore, from these boundaires, it is seen that the one acre purchased by the Defendant’s father lies on the west of the 1.72 acres property purchased by the Plaintiff’s father. Therefore, from Ex.B1 and Ex.B2, it is seen that the 1st Defendant’s father purchased the property in that survey number, and therefore Plaintiff’s contention that the entire property was in his father’s possession cannot be true since a portion was enjoyed by the Defendant’s father as seen from the documents filed by the Defendant. Further, the Defendant claims title under Ex.B1. But, the Plaintiff claims title for the entire property. In the absence of evidence to show how he acquired the property, it cannot be held that the Plaintiff enjoyed the entire property and as per Ex.B2 only 1.72 Acres could be in the Plaintiff’s possession. Therefore, when the plaintifff is not entitled to the entire property the plaintiff is not entitled to permanent injunction as prayed for and hence the judgment and decree of the trial court is correct”.
But the learned counsel for the appellant would submit that the above finding would show that it has been held that the plaintiff in that suit (appellant herein) has not proved his possession to the entire extent in Survey No.369/1 and the findings in Exs.A-1 and A-2 are only tentative findings and only with reference to the probability of the plaintiff’s case and therefore the same will not operate as resjudicata. Learned counsel further submitted that the finding in a suit for bare injunction under Section 27 (C) of the Court Fees Act will never operate as resjudicata since the cause of action arises de-die-in-diam and therefore the lower appellate court ought to have independently considered whether the respondents herein have proved their possession of the suit property on the date of filing of the present suit namely O.S.No.310 of 2002, dehors earlier judgments-Exs.A-1 and A-3. In support of the said contentions the learned counsel for the appellant relied upon a decision of the Division Bench of this Court reported in A.I.R.1953 Madras 32 (AMMENUMMA V. BEEVIAMMA) wherein in paragraph 22 it is laid down as under:-
“(22) In conclusion we are of opinion that a mortgagee has a right under S.67 of the Transfer of Property Act to file a suit for sale subject only to the conditions prescribed therein and of course subject to the law of limitation and that such a suit is not barred under S.11, C.P.C. by reason of a decree for sale passed on the same mortgage in a prior suit and that under S.100 of the Transfer of Property Act the same principle applies to a second suit for sale to enforce a charge”.
12. Countering the said submissions learned counsel for the respondents submitted that even in a suit for bare injunction the Court has to go into the issue of title and unless it is found that a plaintiff seeking injunction is found to have title or it is found that the defendant is not having any title merely based on the proof of possession of the plaintiff injunction cannot be granted. Learned counsel for the respondents further submitted that in O.S.No.99 of 1986 on the file of the District Munsif Court, Thiruthuraipoondi, and in A.S.No.79 of 1998 on the file of the Principal Sub Court, Nagapattinam, the Courts below on an elaborate consideration of all the documents produced before them have recorded a clear finding that the appellant herein, who was the plaintiff therein, had not proved his title to the entire extent of 2.74 acres in S.F.No.369/1 and it had been found that he is having title only in respect of 1.74 acres and title in respect of an extent of 1.00 acre in S.F.No.369/1A has been found in favour of the plaintiffs/respondents herein and only after recording such a categorical finding and after recording a clear finding of possession in favour of the respondents herein, who were the defendants in the earlier suit, the suit for permanent injunction filed by the appellant herein was dismissed and as such it cannot be contended that the findings rendered therein are tentative findings. He further submitted that in the earlier suit the respondents herein disputed the title set-up by the appellant herein in respect of the entire extent of 2.74 acres in S.F.No.369/1 and therefore the issue regarding title had to be gone into by the Courts and hence the Courts have rightly adjudicated that issue and recorded a finding as aforesaid. Therefore, according to the learned counsel for the respondents, when an issue had been decided in the earlier proceedings the same will operate as resjudicata in the subsequent suit if the conditions contemplated under Section 11 of the Code of Civil Procedure are otherwise satisfied. In support of his above contentions, the learned counsel for the respondents relied upon the following decisions:-
(i) AIR 1994 SUPREME COURT 152 (Sulochana Amma v. Narayanan Nair) , wherein in paragraph 8 it is laid down as under:-
“8. Sri Sukumaran further contended that the remedy of injunction is an equitable relief and in equity, the doctrine of res judicata cannot be extended to a decree of a Court of limited pecuniary jurisdiction. We find no force in the contention. It is settled law that in a suit for injunction when title is in issue for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties. When the same issue is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit the decree in the injunction suit equally operates as res judicata.”
(ii) AIR 2000 SUPREME COURT 1238 (Sajjadanashin Sayed Md. B. E. Edr. v. Musa Dadabhai Ummer), wherein it is laid down as under:-
“The test to determine whether an issue was directly and substantially in issue is earlier proceedings or collaterally or incidentally, is that if the issue was ‘necessary’ to be decided for adjudicating on the principal issue and was decided, it would have to be treated as ‘directly and substantially’ in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case. On has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue. It is not to be assumed that matters in respect of which issues have been framed are all of them directly and substantially in issue. Nor is there any special significance to be attached to the fact that a particular issue is the first in the list of issues. Which of the matters are directly in issue and which collaterally or incidentally, must be determined on the facts of each case. A material test to be applied is whether the court considers the adjudication of the issue material and essential for its decision.”
(iii) 2004-2-L.W.21 (E.Ethirajan (Dead) By LRs v. Lakshmi & Others) wherein the Apex Court in paragraphs 20 has observed as under:-
“20. It is true that the joint patta (Ext. A-7) granted by the Settlement Authorities in the proceedings under the Act of 1948 cannot itself be a source of title to claim ownership and right of partition but as has been found by the trial court and the first appellate court, the plaintiffs claim for partition is not based on joint patta (Ext. A-7) alone but judgments rendered between same parties (Exts. A-22 and A-23) in the previous suit and appeal have also been relied on wherein the claim of the present plaintiff to remain in possession of the suit property without any interference by deceased M. Gurunathan and now his LRs had been crystallised by decree of dismissal of suit for eviction against him. Based on the judgment in the previous litigation, an indefeasible right to continue to occupy the suit property as owner had been created in favour of the present plaintiff and the said judgment has attained finality between the same parties and their LRs.”
13. I have carefully considered the aforesaid submissions made by the learned counsel on either side.
14. For answering the substantial question of law framed by this Court it is necessary to consider whether the issue relating to title to the suit property was directly and substantially in issue in the earlier proceedings or that issue was decided collaterally or incidentally. It has to be pointed out that neither in O.S.No.99 of 1986 nor in A.S.No.78 of 1999 a specific issue relating to title to the suit property was framed but nevertheless the question on title was considered and answered against the plaintiff in that suit (appellant herein). Whether such an issue was necessary to be decided in a suit for bare injunction has also to be considered.
15. Nobody can dispute the general principle that a person in peaceful possession is entitled to be maintained in possession against all but the true owner and the suit by such a person for an injunction against any other person threatening to dispossess him is maintainable and there could be an investigation of his cause and relief granted if there is a warrant for it on facts. As pointed out by the Supreme Court in M.Kallappa Setty v. M.V. Lakshminarayana Rao (1972) 1 S.C.W.R.961 = (1973) 1 S.C.J. 374 = (1973) 2 S.C.C. 358 = A.I.R. 1972 S.C. 2299, the plaintiff can on the strength of his possesssion resist interference from persons who have no better title than himself to the suit property.
16. While considering such a question it will be useful to refer to a decision of a learned Judge of this Court reported in (1983) 1 M.L.J. 159 (SRINIVASA PILLAI V. RAGUNATHAN). In that decision, His Lordship Mr. Justice S.Nainar Sundaram, as His Lordship then was, in paragraph 4 has laid down as under:-
“4. In the present case, there is a dispute on the question of title to the suit property between the plaintiff and the defendant. Either it must be found that the plaintiff has title by deed or by adverse possession and if he is found to be in possession on the date of the suit, the plaintiff is entitled to have his possession protected by a decree of permanent injunction; or it must be found that the plaintiff is in possession on the date of the suit and the defendant has no title to the suit property and in that circumstance also the plaintiff’s possession can be protected”.
17. In the light of the above said legal principles if the judgment in the earlier proceedings namely Exs.A-1 and A-3 are looked into it could be easily held that in that suit, for deciding the main issue as to whether the plaintiff in that suit was entitled to get a decree for permanent injunction, it was necessary for the Courts to decide the issue relating to title since the defendant in that earlier suit disputed the title of the plaintiff. Therefore the Courts in the earlier proceedings rightly considered the issue relating to title and having found that the plaintiff was not having title to the entire extent of 2.74 acres but was having title only in respect of 1.72 acres dismissed the suit. Therefore in the considered view of this Court the issue relating to title that was decided in the earlier proceedings was directly and substantially in issue since that issue was necessary to be decided for adjudicating the principal issue and when the same has been decided as stated above it would have to be treated as ‘directly and substantially in issue’ and it is clear that the judgment in the earlier proceedings was infact based upon that decision and hence the judgment in Ex.A-1 as confirmed by the judgment in Ex.A-3 would be resjudicata in the present proceedings.
18. As laid down in the decision reported in AIR 1994 SUPREME COURT 152 (Sulochana Amma v. Narayanan Nair) in a suit for injunction when title is in issue for the purpose of granting injunction the issue directly and substantially arise in that suit between the parties. When the same issue is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit the decree in the injunction suit equally operates as resjudicata.
19. Therefore for the aforesaid reasons the substantial question of law framed by this Court is to be answered against the appellant and in favour of the respondents and answered accordingly.
20. Since the above said substantial question of law has been answered against the appellant it is not necessary to answer the other substantial questions of law that have been framed at the time of admitting the above second appeal.
21. For the reasons stated above, the second appeal fails and the same is dismissed. However, there will be no order as to costs. Consequently the connected MP is closed.
srk
To
1.The Sub-Court, Nagapattinam
2.The District Munsif Court,
Nagapttinam
[ PRV / 15970 ]