There is a distinction between adverse possession and possession simpliciter. An adverse possession cannot operate in the vaccum. Article 65 of the Limitation Act, 1963 applies not merely to the want of actual possession by the real owner, it comes into operative play only when an individual in occupation of the statutory period is such occupation in denial of the title of the real owner. There can be no adverse possession without animus to prescribe.
84.The question of adverse possession is a mixed question of law and fact. If persons claim title by adverse possession, it is their duty to make specific allegation in the Plaint and lead evidence on facts from which they can ask the Courts to drawn inference that the established facts amount to adverse possession in law.
85.In law, a possession which can be referred to a lawful title cannot be considered as adverse in law.
It is to be noted that where plaintiff makes a claim to the property that he is the owner of the same, he cannot plead adverse possession, in the considered opinion of this Court.
If there is no evidence to prove possession for well over two decades, then, ordinarily the claim of adverse possession/title is also not proved, as opined by this Court.
It is an axiomatic principle in law that the acts amounting to adverse possession must be scrutinised in the light of relationship that exists between the parties.
In the decision Bhageerathi Ammal V. Kuppalammal and others, 1990-Vol.1-MLJ-463 at page 464, it is held that 'the co-owners cannot claim adverse possession unless there is strong proof of ouster.'
To constitute adverse possession between near relatives the evidence of ouster must be very strong as per decision in Puttathayamma and another V. Rathnarajiah and another, AIR 1955 Mysore 33.
In Perumal V. Boyot Selvacarassou, Power Agent, Boyot, Virappin (2002) 2 MLJ 150, it is held that 'the rights of real owner cannot be defeated without clear details regarding adverse possession.'
In Munusamy Gounder and another V. Sadasivam, (2005) 1 MLJ 584, it is observed that 'the Plaintiff having denied the title of the Defendant has failed to prove adverse title and as such, the relief of declaration cannot be granted.'
Madras High Court
Chinnammal (Died) vs Kaliammal (Died) on 20 February, 2012
S.A. No. 488 of 1992
CORAM: MR.JUSTICE M.VENUGOPAL
The Appellants/Plaintiffs have filed the present Second Appeal as against the Judgment and Decree passed by the Learned District Judge, Chengalpattu dated 07.02.1990 in A.S.No.71 of 1989 in confirming the Judgment and Decree dated 23.06.1988 in O.S.No.2 of 1985 on the file of the Learned Sub Judge, Poonamallee.
2.The First Appellate Court viz., the Learned District Judge, Chengalpattu, while passing the Judgment in A.S.No.71 of 1989 on 07.02.1990, has, among other things, observed that this suit has been filed in the year 1984 and hence, only if the Plaintiffs prove that Chinnammal died without dividing the suit property, they cannot claim 1/4th share in the suit property and from the documents filed on behalf of the Plaintiffs, it is not established that Chinnammal has died without dividing the property/partitioning the property and further that the contesting Defendants have established that Chinnammal has divided the suit property to her two sons Kengu Naicker and Kanniappa Naicker and also that they have been in enjoyment of the same and subsequently, the Defendants who contested have established that they have changed the patta in their name to show their enjoyment of the suit property and therefore, the Plaintiffs cannot claim 1/4th share in the suit property. Even if the Plaintiffs have any right in the suit property, the Defendants have been in enjoyment of the suit property based on their claim and this fact is known to the Plaintiffs, the relief prayed for by the Plaintiffs is barred by limitation and that the Learned Sub Judge, Ponnamallee has taken into consideration all aspects of the case and has rendered a finding that the Plaintiffs cannot claim 1/4th share in the suit property, which is a correct and valid one and there is no error in it and resultantly, dismissed the Appeal with costs.'
3.Before the trial Court, in the main suit 1 to 6 issues have been framed for determination. On the side of Plaintiffs, witness P.W.1 has been examined and Exs.A.1 to A.6 have been marked. On the side of the Defendants, witnesses D.W.1 and D.W.2 have been examined and Exs.B.1 and B.31 have been marked.
4.The trial Court, on an appreciation of the oral and documentary evidence available on record, has observed and held that on 27.03.1940 the suit schedule property has been partitioned orally as per Judgment in O.S.No.1227 of 1978 and that the Defendants 1 to 7 in O.S.No.1227 of 1978 are the Plaintiffs 2 to 5 and 8 to 10 and the concerned Plaintiffs 2 to 5 and 8 to 10 in the present suit O.S.No.2 of 1985 have contested the present suit O.S.No.2 of 1985. Further, it observed that when the Plaintiff contesting that the concerned property in O.S.No.1227 of 1978 has not been partitioned and the said suit has ended against the Plaintiffs etc. and therefore, the Judgment in O.S.No.1227 of 1978 will bind the present Plaintiffs; that the Court fee has been paid properly according to the Plaint; that the Plaintiffs or their men have not been in possession of the suit property even on 27.03.1940 as stated by the other side, which is accepted by the Court and hence, the suit is barred by limitation. Moreover, it opined that the Plaintiffs have no right to demand partition and resultantly, dismissed the suit with costs.
5.The Plaint Facts:
(i)According to the Plaintiffs, one Chellappa Reddy had two wives viz., Vaidhiammal and Chinnammal. He had one son by name, Manicka Naicker through his first wife and four sons viz., 1.Murugappa Naicker, 2.Chinnaiah Naicker, 3.Kanniappa Naicker and 4.Gengu Naicker and a daughter Chinnammal through his second wife. The said Chellappa Reddy and his first wife Vaidhiammal died long prior to 1940. Subsequently, Manicka Naicker S/o Chellappa Reddy through his first wife also died leaving his only son Ponnuswamy Naicker. Thereafter, during the year 1940, the second wife Chinnammal also died leaving behind her four sons and one daughter.
(ii)The heirs of Chinnammal and Ponnuswamy Naicker, the sole surviving heir through the first wife of Chellappa Reddy divided the properties of Chellappa Reddy among themselves and got separated in 1940 itself. Thus, there was a separation and division between the heirs of the first wife and the second wife of late Chellappa Reddy. The second wife of Chellappa Reddy viz., Chinnammal was absolutely owning a land measuring acres 3.15 cents in punja Survey No.716/7, she having purchased the same by means of a registered Sale Deed dated 02.04.1901. The said Chinnammal was in peaceful possession and enjoyment of the said property in her own right till her death and she was cultivating the said lands with paddy and other crops. The said property was the suit property. (iii)The suit property was always brought into the common Hotchpot and had been possessed and enjoyed along with the family properties by the heirs of late Chinnammal on the death of Chinnammal in 1940, suit and other properties were inherited, possessed and enjoyed by four sons of Chinnammal viz., 1.Murugappa Naicker, 2.Chinnaiah Naicker, 3.Kanniappa Naicker and 4.Gengu Naicker. The only daughter of Chinnammal viz., Chinnammal was provided with all the requirements from the family income and she had not claimed any right whatsoever in the above family properties, including the suit properties. The suit property was however enjoyed all the sons of Chinnammal. The suit property still remained undivided among the said brothers and their Heirs.
(iv)The Plaintiffs are representing the share of late Chinnaiah Naicker, while the Defendants 1 and 2 represent the share of late Kanniappa Naicker, the 3rd Defendant represents the share of Gengu Naicker and the Defendants 4 to 8 represent the share of Murugappa Naicker. Thus, the Plaintiffs are collectively entitled to 1/4th share while Defendants 1 and 2 are entitled to 1/4th share, the 3rd Defendant is entitled to 1/4th share and the Defendants 4 to 8 are entitled to 1/4th share in the suit property.
(v)The said Chinnaiah Naicker had two sons viz., 1.Kanniappan and 2.Elumalai Naicker. The Plaintiffs 1 to 6 are the heirs of late Kanniappan, while the Plaintiffs 7 to 12 are the heirs of late Elumalai Naicker. The Plaintiffs are enjoying a portion of the suit property and also paying land tax for the said enjoyment, in respect of a portion of the suit property. The suit property was not cultivated from 1970 and thereafter it remained vacant till date. Defendants 1 to 8 were postponing the division of the suit property inspite of repeated demands by the Plaintiffs. Defendants 1 to 8 had no exclusive right over the suit property and they were only co-sharers along with the Plaintiffs in regard to the suit property. The other family property viz., house site was orally divided among all the members except the suit property. Some time after the death of the second wife of Chellappa Reddy viz., Chinnammal, all the four sons have decided to live separately with separate mess. The suit property alone remained undivided. The Plaintiffs demand for partition was complied with. As the Defendants had not come forward to effect the partition of the suit property, the Plaintiffs filed the present suit for the reliefs of partition and separate possession of their 1/4th share in the suit property; for appointment of an Advocate Commissioner to divide the suit property in four equal shares and allot one such share to them; and for permanent injunction restraining the Defendants, their agents and servants from alienating the suit property in any manner.
6.The Written Statement Pleas of the 2nd Defendant (adopted by the 1st Defendant):
(i)The suit as framed was not maintainable either in law or on facts. The suit property originally belonged to one Chinnammal, the second wife of Chellappa Reddy. The said Chellappa Reddy had two wives viz., Vaidhiammal and Chinnammal. Chellappa Reddy had only one son by name Manicka Naicker through his first wife Vaidhiammal and four sons and a daughter by name, 1.Murugappa Naicker, 2.Chinnaiah Naicker, 3.Kanniappa Naicker and 4.Gengu Naicker and Chinnammal through his second wife Chinnammal. The Plaintiffs are the descendants through Chinnaiah Naicker and the Defendants 4 to 8 are the descendants through Murugappa Naicker. The 1st and 2nd Defendants viz., Kaliammal and Chellammal were the daughters of Kanniappa Naicker and the 3rd Defendant Baggiyammal was the daughter of Gengu Naicker.
(ii)The properties belonged to Chellappa Reddy were divided between his son, through his first wife and other four sons, through the second wife several decades ago. Likewise, the sons of Chellappa Naicker through his second wife, Chinnammal had orally partitioned the properties including the suit property on 27.03.1940. In the said partition, an extent of 1.25 acres in the suit property was allotted to Kanniappa Naicker, another extent of 1.23 acres in the suit property was allotted to Gengu Naicker and the remainder extent of land in the suit property was provided for Chinnammal, their mother, for her maintenance. The said Chinnammal lived with her son Kanniappa Naikcer till her death and in her lifetime, she parted away with the property allotted to her in favour of her son Kanniappa Naicker by way of family arrangement. As the above said Kanniappa Naicker and Gengu Naicker were unmarried at the time of partition, the above said allotment in the suit property was provided in lieu of their marriage expenses. Thus, the suit properties were exclusively in the possession and enjoyment of Kanniappa Naicker and Gengu Naicker by doing all agricultural operations thereon and had dealt with them independently. (iii)Also, during the lifetime of Kanniappa Naicker, he executed a registered will dated 20.10.1950 bequeathing his property to his wife absolutely and in case of her death, the undisposed property, it would go to his grandchildren absolutely subject to the life interest of his daughters, the 1st and 2nd Defendants. But the mother of the Defendants 1 and 2, Smt.Kanniammal in turn gifted away 83 cents from the suit property and other items given to her under the said will, absolutely in favour of the 2nd Defendant-Chellammal and her husband, Sundaramurthy Naicker. Further, 40 cents from the suit property was gifted to the 1st Defendant under the gift deed dated 05.07.1966. The 2nd Defendant and her husband and 1st and 3rd Defendants were in possession and enjoyment of their respective properties to the full knowledge and exclusive of the Plaintiffs and the Defendants 4 to 8 and so they were now estopped from contending that the suit property was the joint family property. Thus, the family of Defendants 1 to 3 have been in exclusive possession and enjoyment of the said property for several decades by paying kists etc. The 2nd Defendant and her sister, the 1st Defendant got the property sub-divided and patta issued jointly in their name and their portion of the property lies on the eastern side of the suit property. The Plaintiffs in order to give a colour of reality wrongly described the entire suit property as comprised in Survey No.716/7. The suit property was already divided along with other items between the real shares to the entire exclusion of the father of the Plaintiffs, as he was not entitled to any share in the suit property. As such, the Plaintiffs were not entitled to any share in the suit property and the suit was liable to be dismissed in limini.
(iv)The 2nd Defendant along with her sister and her father and mother were in possession and enjoyment of a portion of the suit property measuring about 1.91 acres for several decades dealing with the properties in their own right to the full knowledge of the Plaintiffs and Chinnaiah Naicker, under whom the Plaintiffs claim right, in any case they had perfected title by adverse possession.
(v)Furthermore, the Defendants 1 to 3 sold various portions of the suit property to numerous persons, and the Plaintiffs were already aware of and the said purchasers were also necessary parties to the present lis. The suit was fatal non-impleadment of necessary parties. The Plaintiffs were never in possession of the suit properties along with the Defendants especially Defendants 1 to 3 and they were not entitled to any share in the suit property. The suit O.S.No.1227 of 1978 was finally decided in favour of the Defendants 1 to 3 and Plaintiffs 2 to 5 and 8 to 10 and Defendants 4 to 8 were the Defendants 1 to 12 in O.S.No.1227 of 1978.
(vi)The Defendants 1 to 3 and their parents were held to be in possession of the suit property in O.S.No.1227 of 1978 from the year 1928 to 1974 and the suit property was a separate and self acquired property of Chinnammal and the same was partitioned among her four sons, the fathers of the Defendants 1 to 3 in the year 1940 and Defendants 1 to 3 herein became entitled to the same. Therefore, the findings rendered in O.S.No.1227 of 1978 were binding on the Plaintiffs and the present suit itself was barred by the principles of Res Judicata.
(vii)Neither the Plaintiffs nor the Defendants 4 to 8 are co-shares of the suit property. The suit was barred by limitation. The Plaintiffs claim of right in the suit property itself was extinct by operation of law. As the Plaintiffs were not in possession of the suit property, the suit ought to have been valued as per Section 37 (1) of the Tamil Nadu Act XIV of 1955.
7.The Written Statement Pleas of the 3rd Defendant:
(i)The 3rd Defendant was the only daughter of Gengu Naicker. The suit property originally belonged to one Chinnammal, the second wife of Chellappa Reddy. The Chellappa Reddy had two wives one Vaidhiammal and other by name Chinnammal. Chellappa Reddy had one son by name Manicka Naicker through his 2nd wife Vaidhiammal and four sons and a daughter by name Murugappa Naicker, Chinnaiah Naicker, Kanniappa Naicker, Gengu Naicker and Chinnammal through his 2nd wife Chinnammal. The 3rd Defendant was the only daughter of Gengu Naicke. The 1st and 2nd Defendants were the daughters of Kanniappan Naicker, who is the son of Chellappa Reddy through his second wife Chinnammal. The other Defendants were severally the sons, daughters and wives of the other two sons of Chinnammal, wife of Chellappa Reddy. (ii)The property belonged to Chellappa Reddy was divided between his heirs after his death. In such partition, the suit property comprised in S.No.716/7 admeasuring 1.23 acres was allotted to Gengu Naicker, the father of the 3rd Defendant. The property comprised in S.No.716/7 admeasuring 1.25 acres was allotted to Kanniappa Naicker, the father of the Defendants 1 and 2. A small piece of land measuring 66 cents in Survey No.716/7 was allotted to Chinnammal, wife of Chellappa Reddy. Thus, the suit property was allotted to Kanniappa Naicker and Gengu Naicker, the Defendants 1 to 3 alone are entitled to suit property to the exclusion of anyone. The said extent of 1.23 acres and other items were allotted to the father of the 3rd Defendant and after his death, the mother of the 3rd Defendant Muniammal settled the said property under a duly registered deed of settlement dated 29.06.1946. The 3rd Defendant by means of the aforesaid settlement and her mother and father previously through oral partition were in exclusive possession and enjoyment of the suit property from 1932 onwards by paying kists etc. The 3rd Defendant got the property sub-divided as Survey No.716/7-B and patta issued in her name. Therefore, the Plaintiffs were not entitled to any share in the suit property.
(iii)The 3rd Defendant and the father and mother were in exclusive possession and enjoyment of the suit property with Defendants 1 and 2 from the year 1932 onwards dealing with the suit property in their own right to the full knowledge of the Plaintiffs and their ancestors. In any case, the 3rd Defendant had perfected title by adverse possession also. The 3rd Defendant plotted out her lands viz., 1.23 acres in the suit property in 1975 itself and laid the necessary road. The land was plotted into 17 plots and sold away and now the alienies are in possession. The 3rd Defendant had also mortgaged the property and dealt with as her separate property to the full knowledge of the Plaintiffs.
(iv)The Plaintiffs had not impleaded all the parties necessary for a partition suit. Therefore, the suit was liable to be dismissed for this reason. The 1st Plaintiff senior maternal uncle Ponnusamy Naicker filed a previous suit for partition in O.S.No.1227 of 1978 on the file of the District Munsif of Ponnamallee impleading the present Plaintiffs as Defendants in that suit and the same was dismissed. Therefore, the present suit was barred by principles of Res Judicata. The suit was also bad for non-joinder of parties.
8.At the time of admission of the Second Appeal, this Court has formulated the following Substantial Questions of Law:
"1.Whether the Court below is right in holding that the suit is barred by Res Judicata and Limitation?
2.Whether the court below has appreciated the position of law that unless ouster is proved, a co-owner cannot perfect title by Adverse Possession?"
The Contentions, Discussions and Findings on Substantial Question of Law 1:
9.According to the Learned Senior Counsel for the Appellants/ Plaintiffs, the trial Court as well as First Appellate Court have grossly erred in holding that the decision in O.S.No.1227 of 1978 on the file of District Munsif Court, Poonamallee is a bar to the filing of the present suit.
10.It is the contention of the Learned Senior Counsel for the for the Appellants that the Judgment rendered in O.S.No.1227 of 1978 dated 24.08.1981 cannot operate as Res Judicata in so far as the present suit O.S.No.2 of 1985 on the file of Sub Judge, Poonamallee is concerned.
11.It is the stand of the Appellants/Plaintiffs that the suit O.S.No.1227 of 1978 on the file of District Munsif Court, Poonamallee has been filed by Ponnuswamy Naicker son of Chellappa Reddy through his second wife falsely claiming that he is the son of Chellappa Reddy's first wife and the suit for partition of the property belonging to Chinnammal, first wife of Chellappa Reddy is not maintainable in law.
12.A plea has taken on behalf of the Appellants that the suit O.S.No.1227 of 1978 is liable to be dismissed in limini on the ground that he cannot claim a share in the property which belonged to his step mother, Chinnammal.
13.It is the case of the Appellants that both the Courts have failed to take note of the fact that if the suit property belonged absolutely to Chinnammal, the wife of Chellappa Reddy, there cannot be any room for partition of the said property among her sons, during her lifetime of Chinnammal. Therefore, under such circumstances, Chinnammal can transfer her interest by sale and not by partition.
14.Also, the suit is not barred by limitation and further that both the Courts have failed to note that the Respondents/Defendants have not proved ouster of the Appellants/Plaintiffs from the suit property.
15.It is the submission of the Learned Senior Counsel for the Appellants that no reliance could be placed on Ex.B.16-Will of Kanniappa Naicker, since there is no evidence to establish that the contents of the Will are true.
16.Lastly, it is the contention of Learned Senior Counsel for the Appellants that there is no evidence on record to establish that Chinnammal, mother of the 3rd Defendant possessed any interest in the suit property.
17.That apart, it is the submission of the Learned Senior Counsel for the Appellants that in O.S.No.1227 of 1978 it is found that all the four sons of Chinnammal are entitled to the shares on the property and that the Plaintiff in O.S.No.1227 of 1978 is not entitled to file the said suit because he is not the son of Chinnammal. But in O.S.No.2 of 1985 on the file of Sub Judge, Poonamallee, the Appellants/Plaintiffs are the grandchildren of Chinnaiah Naicker and that they are one of the sons of Chinnammal and therefore, the suit O.S.No.2 of 1985 is filed for claiming 1/4th share in the property and that in the plaint schedule property and further, the property rights in law cannot transferred on the basis of an admission and endorsement.
18.It is the contention of the Learned Senior Counsel for the Appellants that the present suit O.S.No.2 of 1985 on the file of Sub Judge, Poonamallee is not barred the principle of Res Judicata on the simple ground that there are no identical in issues involved in the previous O.S.No.1227 of 1978 and in both the suits claim of title is different cause of action.
19.On behalf of the Appellants/Plaintiffs, it is submitted that the present Plaintiffs in O.S.No.2 of 1985 have made an endorsement in O.S.No.1227 of 1978 that they are submitting to decree and they have committed mistake.
20.The Learned Senior Counsel for the Appellants, in support of the contention that O.S.No.2 of 1985 filed by the Appellants/Plaintiffs is not barred by principles of Res Judicata, cites the decision of the Hon'ble Supreme Court in Ramesh Chandra V. Shiv Charan Dass and others, 1990 (Supp) Supreme Court Cases 633 at page 634 & 635 in para 4 it is held as follows: "Although long arguments were advanced but in our opinion the only question that arises for consideration is if the finding recorded in the appeal filed by defendant No. 1 in which it was held that defendants Nos. 2 and 3 were in possession on his behalf was binding on them in the subsequent suit filed by the plaintiff. In that suit issue No. 2 was if defendant No. 2 and defendant No. 3 were sub-tenants. And issue no. 5 was if they were liable to be ejected. The Trial Court while discussing these two issues held that there was no question of sub-tenancy of these persons as despite sale there was never a break in their possession. It was further held that they were not sub-tenants nor they claimed to be in possession through defendant No. 1. Therefore they were not liable to ejectment. Against this finding plaintiff did not file any appeal. The finding therefore between the plaintiff and defendants Nos. 2 and 3 became final and binding. The appeal was filed by defendant No. 1 as he was aggrieved by the decree of arrears of rent. In that appeal it was observed that the evidence led by defendant Nos. 2 and 3 could not be read against him. But the Court while dismissing his appeal and upholding the decree of Trial Court observed that since they were close relations it appears that even though rent note was executed by defendant No. 1 the possession of defendants Nos. 2 and 3 was on his behalf. This finding could not be taken advantage of by the plaintiff for more than one reason. This observation was unnecessary as the appeal was dismissed. One could under- stand if the appeal would have been allowed and the liability for payment of rent would have been fastened on defendant Nos. 2 and 3 as they were in possession. But since appeal was dismissed the order of Trial Court that liability to pay rent was of defendant No. 1 stood affirmed. Therefore it was an observation which was not only off the mark but unnecessary. It could not accordingly operate as Res Judicata between defendant No. 1 and defendants Nos. 2 and 3 as much less between plaintiff and defendant Nos. 2 and 3. One of the tests to ascertain if a finding operates as Res Judicata is if the party aggrieved could challenge it. Since the dismissal of appeal or the, appellate decree was not against defendants Nos. 2 and 3 they could not challenge it by way of appeal. Even assuming that defendant No. 1 could chal- lenge the finding that liability of rent was of defendants Nos. 2 and 3 as they were in possession he did not file any written statement in the Trial Court raising any dispute between himself and defendants Nos. 2 and 3. There was thus no occasion for the appellate court to make the observation when there was neither pleading nor evidence. Therefore, from either point of view the finding could not operate against defendants Nos.2 and 3 as Res Judicata. Reliance by the appellant on Keshardeo Chamria v. Radha Kissen Chamria, [1953] SCR 154, is of no assistance as it only lays down the binding effect of a decision in a subsequent suit."
21.She also relies on the decision of the Hon'ble Supreme Court in Sajjadanashin Sayed Md. B.E. EDR (D) By Lrs. V. Musa Dadabhai Ummer and others, (2000) 3 Supreme Court Cases 350 wherein it is laid down as follows:
"The words used in Section 11 CPC are "directly and substantially in issue". If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be Res Judicata in a subsequent proceeding. Judicial decisions have however held that if a matter was only "collaterally or incidentally" in issue and decided in an earlier proceeding, the finding therein would not ordinarily be Res Judicata in a latter proceeding where the matter is directly and substantially in issue. The fundamental rule is that a judgment is not conclusive if any matter came collaterally in question. A collateral or incidental issue is one that is ancillary to a direct and substantive issue; the former is an auxiliary issue and the latter the principal issue. The expression "collaterally and incidentally" in issue implies that there is another matter which is "directly and substantially" in issue."
22.The Learned Senior Counsel for the Appellants relies on the decision of the Hon'ble Supreme Court in Saroja V. Chinnusamy (dead) by LRs. And another, 2007 (5) CTC 233 wherein it is held that 'to constitute Res Judicata the following conditions are to be satisfied (1)There must be two Suits. One former and another subsequent (2)Court that decided former Suit must be competent to try subsequent Suit (3) Matter directly and substantially in issue must be same, either actually or constructively in both Suits (4) Matter directly and substantially in issue in subsequent Suit must have been heard and finally decided in former Suit (5)Parties to both Suits or parties under whom they or any of them claim must be same in both Suits (6)Parties in both Suits must have litigated under same title. Also, it is held that an Ex-parte decree in former suit is final decision and binding as a decree after contest on person against whom decree has been passed unless party satisfies Court that it was obtained by fraud or collusion."
23.To lend support to the contention that in a suit filed on prior point of time not on the same cause of action, the order passed therein does not operate as Res Judicata in the subsequent suit filed, the Learned Senior Counsel for the Appellants seeks in aid of the decision in M/s.Anant Raj Agencies Private Limited V. Delhi Electric Supply Undertaking and others, AIR 1992 Delhi 225 wherein it is held thus: "The Plaintiff had let out property to Govt. For use of its income-tax department. The said income-tax department applied for grant of electric connection which was not granted and therefore the plaintiff filed a suit seeking relief for and on behalf of income-tax department. The suit was dismissed on grounds that plaintiff had no locus standi. Thereafter, the plaintiff himself applied as consumer for electric connection and the request was rejected. A fresh cause of action thus arose in favour of the plaintiff when he applied for connections which have been rejected. The subsequent suit thus came to be filed by the plaintiff against order of rejection of his request. Therefore, cause of actions having been different in both the suits between the same parties the provisions of S.11 of Civil Procedure Code will not apply and orders passed in earlier suit will not operate as Res Judicata."
24.The Learned Senior Counsel for the Appellants invites the attention of this Court to the decision in Mahboob Sahab V. Syed Ismail and others, AIR 1995 Supreme Court 1205 at page 1206 wherein it is held as follows:
"The doctrine of Res Judicata must, however, be applied to co-defendants with great care and caution. The reason is that fraud is an extrinsic collateral act, which vitiates the most solemn proceedings of courts of justice. If a party obtains a decree from the court by practicing fraud or collusion, he cannot be allowed to say that the matter is Res Judicata cannot be re-opened. There can also be no question of Res Judicata in a case where signs of fraud of collusion are transparently pregnant or apparent from the face on record."
25.The Learned Senior Counsel for the Appellants relies on the decision of the Hon'ble Supreme Court in Dilbagrai Punjabi V. Sharad Chandra, 1988 (Supp) Supreme Court Cases 710 wherein it is held that 'the High Court can reverse the concurrent findings of fact in second appeal under, on failure of courts below to consider important and relevant evidence.'
26.The Learned Senior Counsel for the Appellants submits that the Respondents/Defendants have not proved the ouster of the Appellants/Plaintiffs from the suit property and further that the Appellants/Plaintiffs and Respondents/Defendants are co-owners and that the rights of co-owners are not extinguished by means of adverse possession, unless actual ouster is pleaded and proved.
27.The Learned Senior Counsel for the Appellants cites the decision of the Hon'ble Supreme Court in Shambhu Prasad Singh V. Mst.Phool Kumari and others, 1971(2) Supreme Court Cases 28 at page 29 wherein it is held as follows:
"The Division Bench was not justified in interfering with the finding of fact concurrently given by the trial Court and the learned single Judge held that the adverse possession of Baijnath whcih commenced from 1933 was sufficiently interrupted by acts of possession by Nankuh and therefore his title was not extinguished by adverse possession."
28.That apart, the Learned Senior Counsel for the Appellants relies on the decision of the Hon'ble Supreme Court in Md.Mohammad Ali (Dead) by LRs. V. Sri Jagadish Kalita and others, 2004 1 L.W. 612 at pages 615 & 616 in paragraph 18 & 19, it is observed as follows:
"18.Long and continuous possession by itself, it is trite, would not constitute adverse possession. Even non-participation in the rent and profits of the land to a co-sharer does not amount to ouster so as to give title by prescription. A co-sharer, as is well settled, becomes a constructive trustee of other co-sharer and the right of the appellant and/or his predecessors in interest would, thus, be deemed to be protected by the trustee. As noticed hereinbefore, the respondents in their written statement raised a plea of adverse possession only against the third set of the defendants. A plea of adverse possession set up by the respondents, as reproduced hereinbefore, do not meet the requirements of law also in proving ouster of a co-sharer. But in the event, the heirs and legal representatives of Gayaram Kalita and Kashiram Kalita partitioned their properties by meets and bounds, they would cease to be co-sharers in which event a plea of adverse possession as contra distinguished from the plea of ouster could be raised. The courts in a given situation may on reading of the written statement in its entirety come to the conclusion that a proper plea of adverse possession has been raised if requisite allegations therefor exist. In the event the plaintiff proves his title, he need not prove that he was in possession within 12 years from the date of filing of suit. If he fails to prove his title, the suit fails.
19.By reason of Limitation Act, 1963 the legal position as was obtaining under the old Act underwent a change. In a suit governed by Art. 65 of the 1963 Limitation Act, the plaintiff will succeed if he proves his title and it would no longer be necessary for him to prove, unlike in a suit governed by Articles 142 and 144 of the Limitation Act, 1908, that he was in possession within 12 years preceding the filing of the suit. On the contrary, it would be for the defendant so to prove if he wants to defeat the plaintiff's claim to establish his title by adverse possession.
Also, in paragraph 24 of the aforesaid Judgment, it is held hereunder:
"Possession of a property belonging to several co-sharers by one co-sharer, it is trite, shall be deemed that he possesses the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co-sharers and mutation in the revenue records in the name of one co-sharers would not amount to ouster unless there is a clear declaration that the title of the other co-sharers was denied and disputed. No such finding has been arrived at by the High Court."
29.The Learned Senior Counsel for the Appellants cites the decision of the Hon'ble Supreme Court in P.Lakshmi Reddy V. L.Lakshmi Reddy, AIR 1957 SC 314 in paragraph 4 it is laid down as follows:
"Now, the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario. (See Secretary of State for India v. Debendra Lal Khan ( [1933] L.R. 61 I.A. 78, 82). The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. (See Radhamoni Debi v. Collector of Khulna([1900] L.R. 27 I.A. 136, 140). But it is well-settled that in order. to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the non-possessing co-heir by the co-heir in possession, who claims his possession to be. adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The coheir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title. (See Corea v. Appuhamy ([1912] A.C. 230). It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. This does not necessarily mean that there must be an express demand by one and denial by the other. There are cases which have held that adverse possession and ouster can be inferred when one co-heir takes and maintains notorious exclusive possession in assertion of hostile title and continues in such possession for a very considerable time and the excluded heir' takes no steps to vindicate his title. Whether that line of cases is right or wrong we need not pause to consider. It is sufficient to notice that the Privy Council in N. Varada Pillai v. Jeevarathnammal (A.I.R. 1919 P.C. 44, 47. quotes, apparently with approval, a passage from Culley v. Deod Taylerson (3 P. & D. 539; 52 R.R. 566.) which indicates that such a situation may Tell lead to an inference of ouster "if other circumstances concur". (See also Govindrao v. Rajabai (AIR 1931 PC 48). It may be further mentioned that it is well-settled that the burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession."
30.It is also contended on behalf of the Appellants/Plaintiffs that if the property is that of the Chinnammal, then, there is no animus and that the first suit O.S.No.1227 of 1978 has been filed in the year 1978 and the present suit O.S.No.2 of 1985 has been filed after lapse of 7 years of filing the first suit and that to prescribe an adverse possession the element of animus is lacking in the present case and as such, the suit O.S.No.2 of 1985 is to be decreed.
31.Contending contra, it is the submission of the Learned Senior Counsel for the Respondents that the Plaintiff in O.S.No.1227 of 1978 in part of the Plaint has never stated that it is benami and the pith and substance of the Plaint in O.S.No.1227 of 1978 is that the Plaintiff and Defendants are in joint possession and enjoyment of the suit property etc.
32.Further, the Learned Senior Counsel for the Respondents contends that in para 3 of the Plaint in O.S.No.1227 of 1978, the Plaintiff therein Ponnuswamy Naicker has stated that property belongs to Chinnammal and it is not stated that it is the joint family property and property belonging to Chinnammal is an admitted fact and all members live together and therefore, Defendants 1 to 9 and 11 & 12 admitted the claim of Plaintiff and submitted to decree.
33.According to the Learned Senior Counsel for the Respondents /Defendants, the present Defendants/Respondents first contend that the Appellants/Plaintiffs have no right in the suit property and that the property has already been partitioned and by virtue of partition, no property is available i.e. all the properties have been divided and further, not both suits the parties are the same and that the source of title for both parties are same and that in the Written Statement of the 14th Defendant in O.S.No.1227 of 1978 in para 4 it is stated that how the properties have been divided and that the Plaintiff in O.S.No.1227 of 1978 is an attestor to the gift deed dated 15.07.1976 and that the sub division of the property has taken place by each of the branches by means of oral partition that has taken place in the year 1940 and that the 14th Defendant's Written Statement in O.S.No.1227 of 1978 has been adopted by others.
34.The Learned Senior Counsel for the Respondents/Defendants contends that if there has been a partition no question of property going back to the joint family and in view of the partition already taken place there is nothing for the Plaintiff to get a relief and each and every one of the findings in O.S.No.1227 of 1978 is very much essential for deciding the conflict between the parties.
35.The Learned Senior Counsel for the Respondents/Defendants submits that the findings rendered in earlier suit in O.S.No.1227 of 1978 that there has been a partition is binding on the Appellants/ Plaintiffs in O.S.No.2 of 1985 and after the partition in the year 1940, the parties are in separate possession of the property and enjoying the same. Added further, it is the submission of the Learned Senior Counsel for the Respondents that in O.S.No.2 of 1985 there is no reference to earlier suit O.S.No.1227 of 1978 and the Written Statement filed in O.S.No.2 of 1985 refers to the earlier suit O.S.No.1227 of 1978 and the findings of earlier suit O.S.No.1227 of 1978 have not been challenged by the Appellants/Plaintiffs and inasmuch as the said findings are one of fact, no questions of law do arise for consideration in the present Second Appeal.
36.That apart, it is the contention of the Learned Senior Counsel for the Respondents/Defendants that even after the Respondents/ Defendants are established, the Plaintiff will not get a share and that the 66 cents goes to aunt and either way the Plaintiff in O.S.No.1227 of 1978 will not get any right. Also, the Learned Senior Counsel for the Respondents/Defendants submits that the Ex.B.16-Will has not been challenged earlier and for the first time taken up challenged in Second Appeal and also that the principles of co-owners will not apply to a parties and since there has been an oral partition in the year 1940 and the properties have been enjoyed separately certainly the adverse possession and ouster plea can be taken by the Respondents/ Defendants.
37.The Learned Senior Counsel for the Respondents/Defendants in support of the contention that if the interest of co-Defendants are conflicting and the decision operates as Res Judicata, cites the decision in Harihar Prasad Singh and others V. Narsingh Prasad Singh and others, AIR 1941 Patna 83 wherein it is held as follows: "Where defendants in a partition suit pray for a partition of their share, then before such relief can be given to them their share must be ascertained. In such a case there is obviously a conflict of interest between the defendants and between that particular defendant and the plaintiff. A defendant who asks for partition of his share is etitled to such relief and when a decree is drawn up he can take steps to enforce such a decree is drawn up he can take steps to enforce such a decree in much the same manner as if he was a plaintiff. The decision in the partition suit in such a case operates as Res Judicata, because in ascertaining the share of the defendant who claims partition, the Court must adjudicate on the rights of the various defendants. If the defendant does not appear, he cannot afterwards challenge the decision as to the shares of the various parties arrived at in that partition suit."
38.To lend support of the contention that in suit between co-defendants issue of jointness is Res Judicata, the Learned Senior Counsel for the Respondents relies on the decision in Vaddaparti Soorayya Vodoori Sooranna and others, AIR 1936 Madras 252 wherein it is observed as follows:
"A sued B, B1 and C for partition of joint family estate held by B. The estate was in the name of B 1 who was the son of B. B at first denied any joint estate but later on entered into a compromise with A, thus admitting the jointness of the estate. The compromise was submitted to Court and a decree was passed on it. In a suit by C against B and B 1 to get his share of property: Held: that the former decision was Res Judicata as to the jointness of the property because that issue was finally decided as between the co-defendants in that suit. So in the suit by C, B and B1 or any one claiming through them cannot deny the right of C to a share: 1919 Mad 893; 1932 P C 161 and 1931 P C 114, Foll."
39.He also brings it to the notice of this Court the decision in Yeshvant Ramachandra Bhide and others V. Govind Chintaman Bhide and others, AIR 1934 Bombay 313 wherein it is held that 'the decision of the High Court in the former suit, that there was a partition between the members of the family was arrived at on the evidence in the case and that B and C who were co-defendants in that suit had supported A asking for the determination of their share, were bound by that decision, and consequently the present suit was barred by res judicature."
40.Added further, the Learned Senior Counsel for the Respondents places reliance on the decision in Uppuluri Ramamani V. Yelamanchili Basavayya and others, AIR (34) 1947 Madras 170 at page 171 & 172 in para 2, wherein it is held thus:
"Mr. A. L. Narayana Rao, the learned advocate for the appellant, argues that the decision on the question whether the plaintiff in this suit was estopped from questioning the validity of the alienations effected by her husband was not necessary in order to give relief to the plaintiff in the previous action. If this is an ordinary case of co-defendants, then the contention would have been perfectly legitimate. In a case between co-defendants the requirements are laid down by the Judicial Committee repeatedly in Munni Bibi v. Trilokinath (1931) 61 M.L.J. 196 : L.R. 58 I.A. 158 : I.L.R. 53 All. 103 (P.C.). and Maung Sein Done v. Ma Pan Nyun (1932) 63 M.L.J. 64 : L.R. 59 I.A. 247 : I.L.R. 10 Rang. 323 (P.C.). But the previous suit was one for partition. In a partition action the sharers are both the plaintiffs and the defendants and each defendant sharer is also in the position of the plaintiff. In fact, the plaintiff in this suit who was defendant 1 in the previous suit expressly asked that the Court should pass a decree in her favour for her share of the properties. It is because she asked for a decree in her favour, the alienees-defendants raised the plea that, even though the plaintiff in that action might be entitled to a share, the first defendant was not entitled because she was estopped for various reasons mentioned by them. This is therefore a case in which the present plaintiff must be deemed to be a plaintiff and the alienees must be taken to be defendants. If they were so arrayed, there is no question about the applicability of the doctrine of Res Judicata. This distinction has been pointed out by the High Court of Patna in Harihar Prasad Singh v. Narasingh Prasad Singh (1940) I.L.R. 19 Pat. 669. There a decision in a previous suit was held to be Res Judicata on the ground that the previous suit was a partition action where one co-sharer defendant asked for a higher share which was resisted by the other co-sharers. In the decision of this question the plaintiff in the previous suit was not at all interested. It was conceded that the decision of the question as to the extent of the co-defendant's share was not necessary in order to give relief to the plaintiff in that action. The learned Judge held that the decision as between the two co-defendants was Res Judicata as the question of the share was expressly decided even though the decision in the former suit was not necessary in order to give relief to the plaintiff in that suit. I agree with that decision and I hold that the plaintiff is precluded by the judgment in the previous suit from re-agitating the claim in the present suit."
41.The Learned Senior Counsel for the Respondents/Defendants cites the decision in Konga Ramaswami Iyer and another V. Ponnuswami alias Thumbayasami Manigarar and others, AIR 1922 Madras 452 wherein it is held as follows:
"If a plaintiff cannot get at his right without trying and deciding a case between co-defendants, the Court will try and decide that case, and the co-defendants will be bound by the decision. The father of defendants 1,3 and 4 mortgaged certain property to plaintiff. In a previous suit for partition brought by defendants 2 & 3 the plaintiff's mortgage was declared fraudulent and not binding. Plaintiff was a party to this suit, while the father was ex parte. Plaintiff then brought this suit to enforce his mortgage against the mortgagor and his sons one of whom was born after the execution of the mortgage. Held: the present suit was barred since the after-born son had no locus standi to challenge the mortgage on any ground whatsoever as he had no independent right to do so. The decision in the previous suit for partition declaring the invalidity of the mortgage so far as the unborn son was concerned must be deemed to have, by necessary implication, decided that the mortgage was invalid as against the father mortgagor. Held: further that though the father was ex parte in the previous suit the decision was Res Judicata as between him and the present plaintiff."
42.Lastly, it is the submission of the Learned Senior Counsel for the Respondents/Defendants that in the Judgment in A.S.No.71 of 1989 on the file of District Court, Chengalpattu arising out of O.S.No.2 of 1985 in paragraph 13, it is specifically observed by the First Appellate Court that from the documents filed by the Defendants (Respondents in Second Appeal), it comes to be known that they have enjoyed the suit property in their hands and changed the patta and these findings on pure fact by the First Appellate Court have not been challenged by the Appellants/ Plaintiffs and also that the plea of adverse possession is an abstract one.
43.The evidence of P.W.1 (9th Plaintiff) is to the effect that the suit property is 3 acres and 15 cents and that the same has been purchased in the name of Chinnammal and Ex.A.1 is the copy of the Sale Deed and that Ponnuswamy Naicker filed O.S.No.1227 of 1978 and Ex.A.2 is the certified copy of Judgment in O.S.No.1227 of 1978 and in the said suit, themselves and 4 to 8 Defendants are the parties and that on receipt of summons from the Court, he has appeared and in the said suit, they have agreed to passing of a Judgment and in the said suit, it is held that they are also entitled to share and subsequently, he has not appointed an Advocate and also not gone to the Court and 13 to 15 Defendants in O.S.No.1227 of 1978 are Defendants 1 to 3 in the present suit (viz., O.S.No.2 of 1985) and he does not know what kind of defence these Defendants have taken and he does not know about the partition effected between Chinnammal and heirs.
44.It is the further evidence of P.W.1 that after the death of Chinnammal all of them have raised crops one by one and that for the past 10 years they have not raised crops and that it is a dry land and that the Chellappa Naicker's property have already been partitioned and he does not know in which year the partition has taken place and through Chellappa Naicker, they have obtained 1 acre and 60 cents and likewise, each sharers have got their respective shares and that one portion of the suit property has been sold and in that portion, buildings have been constructed and when Ponnuswamy Naicker has filed a case, a portion of the present suit property has been sold and the purchasers have been constructed the buildings and now newly a school has been built and one David has constructed a school and he does not know the other purchasers name.
45.Continuing further, P.W.1 has deposed that it is not correct to state that from the year 1940 the properties are in possession of the Defendants and that it is not correct to state that the present suit is barred by principles of Res Judicata and also that it is not correct to state that partition has taken place in the year 1940.
46.D.W.1 (2nd Defendant-Chellammal), in her evidence, has deposed that the suit property originally belongs to Chinnammal and the Plaintiffs are belonging to Chinnaiah Naicker's group and that Chinnammal's four sons, two sons have been married and for the unmarried two sons each 1 < acres property has been written and on that basis, 1 < kani has come to his father, who has paid kists and Exs.B.3 and B.4 are the Katchayath Books and after the death of her father, she is paying the kists-Ex.B.5 to B.15 and the said property has been executed by his father in favour of the two daughters by means of Ex.B.16-Will dated 20.10.1950 and Ex.B.17 is the patta in favour of Chinnammal, Baggiyammal and Kanniammal and Ex.B.18 is the Field Map Sketch and this property which has come into the hands of his father has been in enjoyment of them and that the Plaintiffs have not enjoyed the property and therefore, they have no right in the property and in respect of this property already Ponnuswamy has filed a partition suit which has been dismissed and during the grandmother's period partition has taken place and after partition, the grandmother has lived with them and the last rites of grandmother have been performed by them.
47.D.W.1, in her cross examination, has stated that Chinnappa Naicker and Murugappa Naicker have not taken part in the partition and during her grandmother's lifetime, the suit property has been divided and his grandmother has not partitioned the property in writing and that he knows about his father, two uncles have partitioned the property in writing and that the partition deed is in the house and the said partition document from the house cannot be brought.
48.D.W.2 (Baggiyammal), in her evidence, has deposed that she is the 3rd Defendant and the suit property is 3 acres and 15 cents and that originally the suit property belongs to Chinnammal and that the Chinnammal's four sons are Murugappa Naicker, Chinnaiah Naicker, Kanniappa Naicker, Gengu Naicker and this property has been partitioned and given to Kanniappa Naicker and Kengu Naicker and that Kengu Naicker has received 1 acre 23 cents and she is the sole heir and son of Kengu Naicker and orally the partition has taken place before 60 to 70 years and after partition, his father has been in enjoyment of the property and after his father's death, his wife Muniammal has maintained the property and Muniammal has executed a settlement deed 40 years before and from that date he has been in enjoyment of the same and that this property has been mortgaged to Kuppuammal during the year 1955 as per Ex.B.19-Mortgage Deed dated 21.09.1955 and no one has raised a dispute in regard to the enjoyment of this property and thereafter, he has plotted out the land and sold the same.
49.D.W.2, in her cross examination, has deposed that his father has died during the month of Tamil month Chithirai in the year 1944 and he does not know about the partition that has taken place and his father has received his share of 1 acre and 23 cents and a house site and the balance 1 < cani has gone to do Kanniappa Naicker and the balance kept by her grandmother later that has also been given to Kanniappa Naicker group and that Kanniappa Naicker has received a house site and apart from the house sites and other lands mentioned above there are no other properties and also that it is not correct to state that the Plaintiffs are in enjoyment of a portion of the suit property.
50.It is to be remembered that in order to succeed in Second Appeal, the Appellant is not merely required to show that the decree suffers from error of facts and/or law, but must also exhibit that the error adversely affects the interest of the Appellant.
51.It cannot be gainsaid that 'Right of Appeal' as per Section 100 of Civil Procedure Code is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force. Also, a mere error of fact or law cannot form the basis for challenging a Decree in Second Appeal.
52.In law, a Court of Second Appeal is not a Court of facts and it is not to re-appreciate or re-analyse the evidence on record to judge the correctness of the concurrent findings recorded by the trial Court as well as the First Appellate Court on factual issues/matters.
53.Dealing with the plea that no reliance can be placed on Ex.B.16-Will dated 20.10.1950 of Kanniappa Naicker, since there is no evidence to establish that the contents of Will are true, it is to be pointed out that in law the mode of proving the Will does not differ from that of establishing any other document except as to special requirement of attestation prescribed by Section 63 of the Indian Succession Act. Undoubtedly, Section 6 of the Indian Succession Act prescribes the formality required by law to be adhered to in the matter of execution and attestation of Will. A Will can be proved by any one of the attesting witnesses. Ordinarily, a Will shall not be used in evidence until one of the attesting witness has been called as a witness by the propounder. The possession remains the same even if the other side does not specifically denied the execution of the Will or where the Will is a registered one.
54.The Will-Ex.B.16 dated 20.10.1950 in O.S.No.2 of 1985 on the file of the Subordinate Judge, Poonamallee executed by Kanniappa Naicker son of Chellappa Naicker to and in favour of his wife Kanniammal has been marked as Ex.B.4-Will dated 20.10.1950 in O.S.No.1227 of 1978 on the file of Learned District Munsif Court, Poonamallee. The said Ex.B.4-Will has been referred to in the Judgment dated 24.08.1981 in O.S.No.1227 of 1978 by the trial Court and it has been concluded that 'the suit property was the separate and self acquired property of the grandmother Chinnammal and the same was partitioned among her sons, the fathers of the Defendants 13 to 15 and daughter Chinnammal in the year 1940 and the Defendants 13 to 15 and her aunt Chinnammal became entitled to the same by virtue of Exs.B.4, B.16 and B.17 and as such, the Plaintiff has been disentitled to claim any share, much less 1/5th share in the suit property and consequently, the suit has been dismissed'.
55.In regard to the plea of the Appellants/Plaintiffs that property rights cannot be transferred on the basis of admission of endorsement and the further plea that suit in O.S.No.1227 of 1978 on the file of the District Munsif Court, Poonamallee has been filed by Ponnuswamy Naicker son of Chellappa Reddy through his second wife etc., it is to be pointed out that the suit filed by the said Ponnuswamy viz., O.S.No.1227 of 1978 on the file of District Munsif Court, Poonamallee has been dismissed by the trial Court on 24.08.1981 holding that he has not proved his title to the suit property and also that in the absence of necessary pleas being taken in that suit, the Appellants/ Plaintiffs are not permitted to plead on pure new pleas/questions of fact or questions of law for the first time in Second Appeal.
56.A written statement must include all grounds of defence and specific denial of each fact. Also, the written statement ought to contain particularisation of all points either of fact or law. New pleas raising evidence are not allowed for the first time to be raised in an Appeal. A party cannot be allowed to lead evidence on a fact not pleaded. In law, when there is no denial from the Defendant, a Court may proceed under Order 8 Rule 5 of Civil Procedure Code.
57.In O.S.No.1227 of 1978, the trial Court has only framed an issue whether the Plaintiff is entitled to the partition and separate allotment of 1/5th share in the suit property. Also, in O.S.No.2 of 1985 on the file of Sub Court, Poonamallee, out of 1 to 6 issues have been framed for adjudication, no issue pertaining to Ex.B.16-Will dated 20.10.1950 [Ex.B.4-Will in O.S.No.1227 of 1978] has been raised.
58.When no plea has been raised as regards Ex.B.16-Will in O.S.No.1227 of 1978 and O.S.No.2 of 1985, for the first time the said plea cannot be raised in Second Appeal because of the fact that the First Appellate Court, in the Judgment in A.S.No.71 of 1989 in paragraph 14, has stated that the 9th Plaintiff/9th Appellant as P.W.1 in his evidence has admitted that Ex.B.16 is a true Will and further, the trial Court has also rendered a finding that as per Ex.B.16, a partition has taken place as early as on 27.03.1940, then, these are all finding of facts.
59.At this juncture, this Court mentions the following decisions:
(a)In V.Ramachandra Ayyar and another V. Ramalingam Chettiar and another, AIR 1963 SC 302, the Hon'ble Supreme Court has held that 'error in appreciation of evidence is not an error or defect connected with procedure. The High Court has no jurisdiction to interfere.'
(b)In Vishwa Vijay Bharati V. Fakhrul Hassan and others, AIR 1976 SC 1485, the Hon'ble Supreme Court has observed that 'The High Court in Second Appeal has no jurisdiction to set aside a finding of fact recorded by the Appellate Court.'
(c)In K.Chelliah Servai V. P.Muthusami Servai, 1995 Supp (1) Supreme Court Cases 202 at page 203, it is laid down by the Hon'ble Supreme Court that 'A new question neither pleaded before, nor dealt with, by the Courts below cannot be gone into by the High Court as per Section 100 of Civil Procedure Code.'
(d)In Bachan Singh V. Dhian Dass and others, AIR 1974 SC 708 it is held that 'a new plea should not be allowed to be raised when it involves determination of question of fact.
(e)In Abdul Raheem V. Karnataka Electricity Board and others, (2007) XIV SCC 138 at page 142 it is held that 'a substantial question of law ordinarily will not arise from the finding of facts arrived at by the trial Court and the First Appellate Court.'
(f)In the decision Mukhtir Ahmed V. Husan Bano (Smt) and others, (1996) 7 SCC 470 at page 471, it is held as follows:
"The appellant had laid the suit for declaration of 2/3rd share of the house in his favour, on the premise that he was a co-owner. It is not in dispute that on a previous occasion in a suit filed by the co-sharer, a finding was recorded that he was not entitled for 2/3rd share but to 1/5th share. The said decree became final. In view of the matter, it operates as Res Judicata as against the co-owners. He cannot claim any share in the suit for 2/3rd share. The High Court, therefore, was right in dismissing the suit. We do not think there is any illegality in the finding recorded by the High Court."
(g)In Nazim Ali and others V. Anjuman Islamia, Chhatarpur and others, AIR 1999 Supreme Court 1098 at page 1100 & 1101, in paragraphs 11 to 13, it is observed hereunder:
"11.The defendants therein (who are appellants in the present appeal) contended that the suit property was not wakf property and claimed the same to be their private ancestral property known as 'Badi Takia' and those called as 'Panchayatghar' and 'Musafirkhahan' were infact the residential houses of the defendants and their predecessor-in-title, which were constructed about long time back. They denied the contention of plaintiff, (therein) that the property in question has been constructed by the Mohammedans of Chhatarpur and the same work looked after by the Mohammedan community. The allegation of running of any school in the 'Badi Takia' was also denied. The only admission made by the appellants was that the Mohammedans of Chhatarpur congregated in the Mosque for prayers but they denied the use of open compound for prayers by them. They had become final and not disturbed by this Court, we think that the learned District Judge was justified in holding that the proceedings were barred by Res Judicata. However, the contention put forth by respondents is that the previous suit was in respect of only a plot measuring 6' x 6' and not entire property of 'Badi Takia'. A careful examination of the pleadings in the previous suit will indicate that though the plaintiffs had not raised the issue as to the entire property in 'Badi Takia', the defendants (respondent) raised a plea that the entire property in 'Badi Takia' was wakf property and, therefore, the suit was liable to be dismissed. Hence, even before this Court the point agitated and put in issue was that the entire property in 'Badi Takia' was wakf property which was rejected by stating that though the Mosque and the school were wakf property that inference would not result in holding that the entire 'Badi Takia' is wakf property as no proof had been placed to reach any such conclusion and thus the conclusion or the findings of the High Court affirming that of the trial court were not upset or modified in any manner. The findings of the High Court as to the nature of the property having remained unaltered the claim of the respondents in the suit being contrary is barred by principles of Res Judicata. This finding of the trial court has to be restored, while setting aside that of the High Court.
12. So far as the question raised in the matter that as to whether the agreement dated September 19, 1953 executed by Tegh Ali and Wajid Ali could be construed to be estoppel is concerned, in the suit, O.S. No. 28/60, it had been decided by the Trial Court that the agreement would not operate as estoppel as it related primarily to the Muharram arrangements and not to the settlement of the rights over 'Badi Takia'. Similarly the Collector also had passed an order on August 31, 1954 which examines the background in which the agreement had been made. Several disputes had arisen between the parties out of which this dispute relating to Muharr arrangements was one and by an agreement it was decided that the Tazia of 'Badi Takia' belongs to all the even sects of Muslims and the Tazia of 'Badi Takia' was taken out according to old prevalent custom and it was made clear that the other private disputes will be settled in other proceedings and the High Court affirmed this finding by stating as follows: The agreement Exhibit D-l dated 19.9.1953, arrived at before the Tehsildar, Chhatarpur mentioning that the 'Badi Takia' was the property of seven communities would not operate as an estoppel against the appellants, as was rightly held by the learned Judges of the Courts below concurrently.
13. That point stood decided against the respondents and therefore, on principles of Res Judicata it was not open to the High Court to re-examine that aspect of the matter and to hold that the same amounts to estoppel.
(h)In Ashok Kumar Srivastav V. National Insurance Company Limited and others, AIR 1998 SC 2046 at page 2049 in paragraph 15, the Hon'ble Supreme Court has observed hereunder:
"15.Thus, the legal position is clear and the respondent cannot now re-agitate the question regarding maintainability of the suit under Section 34 of the Act. However, learned counsel adopted an alternative contention before us that the suit is in effect one for specific enforcement of a contract and such a suit is not conceived under Section 14 of the Act and hence it is not maintainable. According to the learned counsel, the reliefs claimed in the suit, if granted, would result in specific enforcement of a contract of employment. Section 14(1)(a) of the Act makes it clear that a contract of employment is not specifically enforceable since non performance of can be compensated by money, contended the counsel."
(i)In Chhabil Das V. Pappu, (2007) 8 MLJ 794 (SC) the Hon'ble Supreme Court has held as follows:
"It is now well-known that the principle of Res Judicata also applies in different stages of the same proceedings.
Once, thus, the respondent was substituted in place of original defendant the question of reopening the said question does not arise."
60.Apart from the above, this Court cites the following Case Laws:
(a)In Saroja V. Chinnusamy (Dead) by Lrs. and another, (2007) 6 MLJ 712 (SC) at page 713 (SC), the Hon'ble Supreme Court in paragraphs 9, 10 and 11 has laid down as follows:
"Condition No. (iv) first which says, "the matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the former suit". Learned counsel for the appellant sought to argue that since the former suit was decided ex parte, it could not be said that it was finally heard and decided by the court and therefore, Condition (iv) was not satisfied and the principle of Res Judicata could not be applied and accordingly the ex parte decree in the former suit would not operate as Res Judicata in the subsequent suit. We are unable to agree with this contention of the learned counsel for the appellant. In this case, admittedly, summons was duly served upon Kuppusamy and inspite of such service of summons, Kuppusamy thought it fit not to appear or to contest the suit filed against him. Once an ex parte decree is passed against Kuppusamy, in our view, the same should be taken as a final decision after hearing. It is well settled that an ex parte decree is binding as a decree passed after contest on the person against whom such an ex parte decree has been passed. It is equally well settled that an ex parte decree would be so treated unless the party challenging the ex parte decree satisfies the court that such an ex parte decree has been obtained by fraud. Such being the position, we are unable to hold that Condition No. (iv) was not satisfied and accordingly it cannot be held that the principle of Res Judicata would not apply in the present case. In the present case, admittedly, the appellant in her plaint had not made any case of fraud or collusion either against Kuppusamy or against the respondents herein. The Court is in full agreement with this view of the Madras High Court holding that a decree which is passed ex parte is as good and effective as a decree passed after contest.
Condition No. (v) which says, "the parties to the suits or the parties under whom they or any of them claim must be the same in both the suits". It is true that the appellant was not a party to the suit filed by respondent No. 3 and others against Kuppusamy from whom the appellant had purchased the property by a registered deed of sale. In the present case, the appellant was litigating on the basis of the title acquired by her from Kuppusamy against whom the ex parte decree was passed in the former suit. Therefore, it would not be difficult for us to hold that the appellant, who although was not a party to the former suit, claimed through Kuppusamy in the suit subsequently filed by her. Condition No. (vi) which says, "the parties in both the suits must have litigated under the same title". We have to enquire whether the parties in the subsequent suit were litigating under the same title for the purpose of determining whether the ex parte decree passed in the former suit would operate as Res Judicata in the subsequent suit filed by the appellant. In our view, this condition is also fully satisfied. In this connection, we may rely on a decision of this Court in the case of Aanaimuthu Thevar (Dead) by Lrs Vs. Alagammal & Ors. [ JT 2005 (6) SC 333]. In that case the former suit was jointly filed by one Muthuswami as owner and mortgagor with the mortgagee in respect of the suit property. The subsequent suit was filed by the appellant in that appeal who had purchased the suit property from Muthuswami. It was held by this Court that the appellant in that appeal was litigating under the same title which Muthuswami had in the suit property. In the background of such facts, this Court held that since the issue of title of the suit property was directly and substantially involved in the former suit, the suit filed by the appellant in that appeal shall operate as Res Judicata, or at least, the suit was hit by the principle of constructive Res Judicata. This being the position and in view of our discussions made herein above, we hold that by virtue of the ex parte decree passed in the former suit, the subsequent suit filed by the appellant is hit by Res Judicata."
(b)In Dadu Dayalu Mahasabha, Jaipur (Trust) V. Mahant Ram Niwas and another, (2008) 11 SCC 753 in paragraphs 19, 20, 24 to 28, the Hon'ble Supreme Court has held as follows:
"19. A suit is filed on a cause of action. What would constitute a cause of action is now well settled. It would mean a bundle of facts which would be necessary to be proved by the plaintiff so as to enable him to obtain a decree. First Respondent's suit for possession was premised on a legal entitlement. Appellant herein also claimed its right over the Gaddi in question. The trial court framed several issues. Its discussion centred round the respective pleas of the parties which had fully been gone into. The suit was dismissed. The first appellate court not only went into the question of possession of the first respondent over the Gaddi, as on the date of institution of the suit, but the other questions.
20.Rightly or wrongly a decision was arrived at that the first respondent was held to be not entitled to hold the Gaddi and management of the same. A legal right of the appellant with regard thereto was found favour with the first appellate court. On the aforementioned backdrop the implication of the observations of this Court must be noticed and considered.
24.Section 11 of the Code not only recognizes the general principle of Res Judicata, it bars the jurisdiction of the court in terms of Section 12 thereof.
25.Explanation V of Section 11 of the Code extends the principle of Res Judicata stating that the reliefs which could have been or ought to have prayed for even if it was not prayed for would operate as Res Judicata. Section 12 thereof bars filing of such suit at the instance of a person who is found to be otherwise bound by the decision in the earlier round of litigation and in a case where the principle of Res Judicata shall apply.
26.We, however, are not unmindful of the principles of estoppel, waiver and Res Judicata, are procedural in nature and, thus, the same will have no application in a case where judgment has been rendered wholly without jurisdiction or issues involve only pure questions of law. Even in such cases, the principle of issue estoppel will have no role to play.
27.However, once it is held that the issues which arise in the subsequent suit were directly and substantial in issue in the earlier suit, indisputably Section 11 of the Code would apply.
28.Similarly the provisions of Order II Rule 2 bars the jurisdiction of the Court in entertaining a second suit where the plaintiff could have but failed to claim the entire relief in the first one."
(c)In the decision of the Hon'ble Supreme Court in Amarendra Komalam and another V. Usha Sinha and another, AIR 2005 SC 2758 at page 2764, in paragraph 24 and 25, it is observed thus:
"24.In our opinion, the High Court has miserably failed to appreciate that the undertaking of first respondent in Civil Revision No. 18 of 1999 that she will not raise the issue of interpolation is binding on her in the present suit and as such she was barred by the principles of Res Judicata, waiver and estoppel from being allowed to raise the same issue again between the very same parties in relation to the same subject matter. The Agreement dated 02.09.1978 is an admitted document. Respondent No.1 had sought to raise the issue of its forgery in earlier proceedings, but finally undertook not to do so. This was recorded by the High Court and the Civil Revision filed by respondent No.1 was disposed of accordingly. Later respondent No.1 sought to resile from her stand and filed an application for review before the High Court, which was also dismissed. The said order was challenged in Special Leave Petition (Civil) No. 16513 of 2001. This Court dismissed the same after hearing the parties at the stage of final disposal. In that view of the matter, we are of the opinion that the respondent is precluded from raising the same issue of interpolation/forgery in the renewal clause of the said agreement deed again.
25.The undertaking and the acceptance not to raise the issue of interpolation is a matter of record. It is well settled that once a issue of fact has been judicially determined finally between the parties by a Court of competent jurisdiction and the same issue comes directly in question in subsequent proceedings between the same parties then the persons cannot be allowed to raise the same question which already stands determined earlier by the competent Court. For that the question of interpolation in the renewal clause of the said deed has been finally decided and the same issue has been raised in the present suit when in both the suits the parties are the same and the basic claim of both the parties are same as in eviction suit, the plaintiff is claiming eviction by termination of lease and denying the renewal clause whereas in the specific performance suit, the appellants are claiming the renewal of the lease on the basis of the said renewal clause. Hence in both the suits, the main issue is substantially and materially one and the same and both the cases are being tried simultaneously. This apart, the judgment of the High Court and of this Court is a judgment in personam which is binding upon both the parties. It is also seen that the order dated 15.02.1999 in Civil Revision is a consent order which creates an estoppel by judgment as the judgment dated 15.02.1999 operates as estoppel as records of the findings are essential to ascertain the judgment. By passing of the impugned judgment, the High Court has virtually allowed the suit in favour of respondent No.1. In any view of the matter, the impugned order is bad in law and fact as well and, therefore, the same is liable to be set aside."
(d)In G.Mahalingappa V. G.M.Savitha, (2006) 2 M.L.J. 197 (S.C.), the Hon'ble Supreme Court in paragraph 25 has laid down has follows:
"From the judgment of the High Court, the Court finds that the concurrent findings of fact were set aside not on consideration of the findings of fact arrived at by the courts below but only on the basis of the arguments of the learned Advocate of the respondent. This was also not permissible to the High Court in Second Appeal to come to a contrary findings of its own only on the basis of the arguments of the learned counsel for the respondent without considering the findings of the trial court as well as the appellate court. It is equally settled that High Court in second appeal is not entitled to interfere with the concurrent findings of fact arrived at by the courts below until and unless it is found that the concurrent findings of fact were perverse and not based on sound reasoning.
(e)In the decision A.Somasundaram and another V. M/s.Jethanand Chatrumal and others, 1998 Vol.1 MLJ 353, it is held by this Court as follows:
"15. In view of the decision reported in decided cases, the Court does not think that the presentation of a plaint and institution of a suit for the appointments of an administration is barred by any law. The court had jurisdiction to decide the same, and in fact, a preliminary decree was also passed and confirmed by this Court. After getting a preliminary decree passed on consent it is too much on the petitioners now to raise an objection on the allegation that the suit is not maintainable, or make an attempt to have the plaint rejected. By stating so, I should not be understand as saying that by consent, a jurisdiction is conferred. Even without their consent, and there was a proper adjudication by passing a preliminary decree. The present application filed by them is, therefore, barred by Res Judicata." In M.Subramaniam and others V. C.Choottabhai and Company by partner Chandubhai C.Patel and others, 1990-Vol.-MLJ-66 at page 67, this Court has held that 'The first respondent filed a suit in O.S.No.248 of 1969 for the recovery of a sum of Rs.19,804.34 with interest based on a hire purchase agreement between him and the first defendant by name Murugiah Chetti. Defendants 2 and 3 were the guarantors. One Nallammal filed a suit in O.S.No.296 of 1967 for the recovery of a sum of RS.6,662.50 alleged to be due on a mortgage executed by defendants 1 and 2 in that suit viz., Murugiah Chetti and his wife. Both the suits were contested on the ground that the debts were incurred for illegal and immoral purposes. There was a third suit for partition O.S.No.346 of 1968 filed by the appellants in the two appeals against the decrees in O.S.No.248 of 1969 and O.S.No.296/1967 for declaration that the conveyance deed dated 5.10.61 in favour of their father Murugiah Chetty by their mother Bagyam alias Thangammal was not binding on them. All the three suits were disposed of by a Common judgment. The trial Court found that the debts incurred by Subramaniam Chetti and Bagiyam alias Thangammal were binding on the appellants. Based on the findings given in the judgment, preliminary decrees were passed in O.S.No.296 of 1967 and O.S.No.248/1969. No appeal was filed against the decree passed in O.S.No.346 of 1968. That decree had become final and conclusive Appeals were filed against the decrees in O.S.No.296 of 1967 and O.S.No.248 of 1969 only. It was contended by the respondents that since the decree in O.S.No.346 of 1968 had become final and conclusive both the appeals were barred by the principle of Res Judicata. Held:- In view of the pronouncements of the Supreme Court in Lonakutty v. Thomman and others, AIR 1976 SC 1645 : (1976) 1 S.C. W.R. 484 andNarayana Prabhu Venkateshwara Prabhu V. Narayana Prabhu Krishna Prabhu (Dead) by Lrs., AIR 1977 SC 1268, there can be no doubt that the present appeals are barred by Res Judicata. It is not open to the appellants herein to contest the same issues in the appeal when there is a decree against them in O.S.No.346 of 1968 which has become final and conclusive. The contention that there should be confirmation of the decree of the trial Court by an appellate Court in order to constitute Res Judicata is without any substance."
(f)In Rajendra Deva V. Hari Fertilizers Sahupuri, Varanasi, (2002) 1 SCC 130, at page 131, the Hon'ble Supreme Court has held that 'when proceedings have reached finality, a claim for further relies is not permissible.'
(g)Also, Res Judicata is not concerned with the issue whether previous decision is right or wrong. A wrong decision rendered with jurisdiction if not corrected by Appeal, Revision or other modes available by law will have such a binding force as a right decision. When the parties litigate in the same title, the earlier decision is clearly applicable in subsequent litigation as per decision in Bharathi and others V. Vinod S. Sivasudha, AIR 2008 Kerala 125 at page 131 (FB).
(h)In Patel Ranhhodbhai Bhaichanddas through HLR and others V. Rabari Jiva Java through his HLR and others, AIR 1998 Gujarat 207 at page 209, it is held that 'the decision of the Court right or wrong, when it has become final cannot be challenged subsequently.'
(i)In Shri Jai Kishan Dass and others V. Smt. Nirmala Devi and others, AIR 1984 SC 589, it is held that 'A finding regarding disruption of joint Hindu family in earlier litigation would operate as Res Judicata.'
(j)In Umayal Achi and another V. Ramanathan Chettiar, 1980 1 MLJ 24, it is held that 'even an erroneous decision on the question of law can operate as Res Judicata.'
61.Moreover, in appreciating the principle of Res Judicata, this Court quotes the following decisions:
(a)In Rao Sobhagsingh V. Rao Ranjitsingh, AIR (32) 1945 Privy Council 132 at page 133, it is observed and held as follows:
"In the previous suit between the same parties the plaintiff claimed that he was entitled to one half of the entire income from the offerings made by pilgrims to the idol of Shree Onkarji at the time of certain annual fairs. The plaintiff's title to one half of the entire income was upheld. In the subsequent suit the plaintiff claimed a half share in the income from entire offerings made at subsequent annual fairs: Held that the defence in the subsequent suit that the plaintiff was entitled to a half share in the income of only one portion of offerings, namely, the shamlat khut or joint account, was a matter which might and ought to have been made a ground of defence in the previous suit and was therefore to be deemed to have been a matter directly and substantially in issue in the previous suit within the meaning of Expln. 4 to S.11. The defence in the subsequent suit therefore was barred by S.11, Explanation 4."
(b)In Harihar Bhagal V. Mossfir Pathak and others, AIR 1966 Patna 268, it is held as follows:
"If as a result of any rise in the value of the property the suit is subsequently instituted in a higher Court, that by itself cannot save the operation of the rule of Res Judicata. AIR 1951 Pat 595 and AIR 1954 SC 9 and AIR 1954 Pat 43 Rel. on."
(c)In State of Madhya Pradesh V. Mulamchand, AIR 1973 Madhya Pradesh 293, it is observed as follows:
"(A) Whether the impugned indenture was or was not executed in compliance with the provisions of Article 299 (1) was a matter directly and substantially in issue in the present (second) suit and it was also directly and substantially in issue in the former writ proceedings giving rise to the Letters Patent Appeal in which the question was heard and finally decided between the parties. A decision on a question of law is Res Judicata in a subsequent proceeding between the same parties where the cause of action is same. "Matter in issue" as used in Section 11, C.P.C. means right litigated between the parties and it refers not only to the facts on which the right is claimed but also to applicability or non-applicability of a rule of law to the given set of circumstances. The decision of the L.P.A. having become final operates as Res Judicata in the present suit. Case law discussed. (B)If a decision of question of law applicable to the given facts has attained finality it will operate as Res Judicata even if the question was interpreted in ignorance of a binding precedent or if in a subsequent binding precedent the law has been interpreted otherwise. Therefore, the subsequent declaration of the Supreme Court in a different proceeding (on the same cause of action) as to requisite compliance with and mandatory nature of Article 299 (1) does not affect the operation of the earlier decision of the L.P.A. As Res Judicata in a subsequent suit on the same cause of action." (d)In Sajjadanshin Sayed Md.B.E. Edr. (D) by LRs. V. Musa Dadabhai Ummer and others, (2000) 3 SCC 350, it is held as follows:
"The words used in Section 11 CPC are "directly and substantially in issue". If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be Res Judicata in a subsequent proceeding. Judicial decisions have however held that if a matter was only "collaterally or incidentally" in issue and decided in an earlier proceeding, the finding therein would not ordinarily be Res Judicata in a latter proceeding where the matter is directly and substantially in issue. The fundamental rule is that a judgment is not conclusive if any matter came collaterally in question. A collateral or incidental issue is one that is ancillary to a direct and substantive issue; the former is an auxiliary issue and the later the principal issue. The expression "collaterally or incidentally" in issue implies that there is another matter which is "directly and substantially" in issue."
In the aforesaid decision at page 359 & 360 in paragraph 18 and 19, it is observed hereunder:
"In India, Mulla has referred to similar tests (Mulla, 15th Ed.p.104). The learned author says: A matter in respect of which relief is claimed in an earlier suit can be said to be generally a matter 'directly and substantially' in issue but it does not mean that if the matter is one in respect of which no relief is sought it is not directly or substantially in issue. It may or may not be. It is possible that it was 'directly and substantially' in issue and it may also be possible that it was only collaterally or incidentally in issue, depending upon the facts of the case. The question arises as to what is the test for deciding into which category a case falls? One test 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. (Mulla, p.104) One 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 ( Ishwar Singh Vs. Sarwan Singh: AIR 1965 SC 948 Syed Mohd. Salie Labbai Vs. Mohd. Hanifa: AIR 1976 SC 1569). We are of the view that the above summary in Mulla is a correct statement of the law. We have here to advert to another principle of caution referred to by Mulla (p.105).
"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".
(e)In Madhvi Amma Bhawani Amma and others V. Kunjikutty Pillai Meenakshi Pillai and others, (2000) 6 SCC 301 at page 302 & 303, it is held as follows:
"The principle of Res Judicata as enshrined in Section 11, is evolved from the maxim "nemo debet bis vexari pro una et eadem causa". This is not exhaustive, it is ever growing. One such example of its growth is exhibited by the incorporation of Explanation VIII in Section 11 by means of the amending Act in 1976. In order to apply the general principle of Res Judicata the court must first find whether an issue in a subsequent suit was directly and substantially in issue in the earlier suit or proceedings, was it between the same parties, and was it decided by such court. Thus there should be an issue raised and decided, not merely any finding on any incidental question for reaching such a decision. So if no such issue is raised and if on any other issue incidentally any finding is recorded, it would not come within the periphery of the principle of Res Judicata."
(f)In Shyam Behari Lal V. Lalla Jageshwar Prasad, 1970 (3) Supreme Court Cases 591 at page 593 & 594, it is held thus:
"5.The plea of Res Judicata on general principle can be successfully taken in respect of judgments of courts of exclusive jurisdiction. Courts of exclusive jurisdiction are those which have been conferred exclusive powers to decide certain matters like revenue courts, land acquisition courts, probate courts, etc. It is obvious that these courts are not entitled to try regular suits. When the plea of Res Judicata is founded on general principles of law all that is necessary to establish is that the court that heard and decided the former case was a court of competent jurisdiction. It does not seem necessary in such cases to further prove they have jurisdiction to hear the latter suit. But if the plea of Res Judicata is raised under Section 11 of the Code of Civil Procedure one of the essential conditions to be satisfied is regarding the competency of the former court to try the subsequent suit. That is one of the limitations engrafted on the general rule of Res Judicata by Section 11 of the Code of Civil Procedure and has application to suits alone. (see the decision of this Court in Raj Lakshmi Pasi V. Banamali Sen, 1953 SCR 154. It was argued for the appellant that the Court of Small Cause cannot be regarded to be a court of exclusive jurisdiction but it has preferential jurisdiction with regard to certain suits. In support of this view reference was made to Dulare Lal V. Hazari Lal, AIR 1914 All 229, Ghulappa Bin Balappa V. Raghmvendra, IL?R 28 Bombay 338; Mohini Mohan Roy V. Ramadas Paramhansa, AIR 1924 Cal 487; Madhorao V. Amrit Rao, AIR 1918 Nag 163; and Pateshwari Prashad V. A.S.Gilani, AIR 1959 Punj 420. IT is not, however, necessary for us to express any concluded opinion on this point in the present case. We shall assume in favour of the appellant that Section 11, C.P.C. is applicable. On this assumption it is argued for the appellant that the condition imposed by Section 11, C.P.C. regarding the competency of the court is not satisfied because the Judge, Small Cause Court, Kanpur, had no pecuniary jurisdiction to hear a rent suit up to Rs.1,440/-. There is, however no material on the record of the case to show as to what was the pecuniary jurisdiction of the Judge, Court of Small Causes, Kanpur, on the relevant date. In the absence of the relevant information included on this point we are unable to accede to the argument of the appellant that the Judge, Small Cause Court, Kanpur, had no pecuniary jurisdiction up to Rs.1,440/- which was the valuation of the latter suit. We, therefore, see no reason for interfering with the finding of the High Court, that the defence of the appellant in the present case is barred on the principle of Res Judicata."
(g)In Lingangowda Dod-Basangowda Patil and others V. Basangowda Bistangowda and others, AIR 1927 Privy Council 56, it is held as follows:
"In the case of a Hindu family where all have rights, it is impossible to allow each member of the family to litigate the same point over and over again, and each infant to wait till he comes of age, and then bring an action, or bring an action by his guardian before; and in each of these cases, therefore, the Court looks to Explanation 6 of S.11 of the Civil P.C. to see whether or not the leading member of the family has been acting either on behalf of minors in their interest or if they are majors, with the assent of the majors: AIR 1925 P.C. 272, Ref." (h)In State of Haryana V. State of Punjab and another, (2004) 12 Supreme Court Cases 673, it is held that 'the doctrine of Res Judicata and Order 32 Rule 2 of Supreme Court Rules are not technical rules of procedure. But they are fundamental to the administration of justice in all Courts, based on the principle that there must be an end to a litigation.'
(i)In Laxmi and others V. A.Sankappa Alwa and others, AIR 1989 Kerala 289, 292, 294 it is held that 'preliminary decree in partition suit though inexecutable, matters decided therein are final, conclusive and cannot be reopened in subsequent suit. Res Judicata would apply.'
(j)In Muthakke alias Kalavathi and other V. Devanna Rai and others, AIR 2002 Kerala 301, 305 & 306 it is held that 'an oral partition in issue in both suits, finding in first suit operate as Res Judicata'.
(k)In Devi Prasad V. Smt.Janak Dulari and others, AIR 2008 (NOC) at page 654 (Uttranchal), it is held that 'finding in an earlier suit in regard to the same property, when Plaintiff of the latest suit has been arrayed as Defendant in the earlier suit would operate as Res Judicata.
62.According to the tenor of Section 97 of the Civil Procedure Code if an affected party has not challenged a preliminary decree, then, he is barred to raise, in Appeal an objection against Final Decree. Unless and until an appeal has been filed and such a preliminary decree is annulled or varied or set aside etc., there is no scope for reopening such matters either in final decree or in an appeal against such final decree as per decision of the Hon'ble Supreme Court in Venkata Reddy and others V. Pethi Reddy, AIR 1963 SC 992.
63.To attract Order 2 Rule 2 (3) of Civil Procedure Code, it must be shown that the second suit is based on identical cause of action. The criteria to Judge is whether the same evidence would maintain both actions. Further, the cause of action means cause of action for which the suit is brought. The two suits must be between the same persons or person claiming through same parties. For taking the plea of bar parties or claim must be identical in both suits, the subsequent suit [whether filed after decision of first suit or during its pendency] is clearly barred.
64.Section 11 of the Civil Procedure Code is a substantive law which bars the filing of subsequent suit on a plea which was available below to a party in previous suit.
65.No wonder, failure to file an appeal against the preliminary decree will operate as bar to raise any objection to it in an appeal filed against the final decree as per decision of the Hon'ble Supreme Court in Moolchand V. Deputy Director, AIR 1995 SC 2493.
66.In regard to the concept that a valid partition can be effected orally, it is worthwhile for this Court to refer to the decision in Sikhari Lakshmaiah and others V. Sikhari Peddamallaiah (died) and others, AIR 1979 Andhra Pradesh 275 at page 276 wherein it is held as follows:
"Where all the joint family members got themselves divided and partitioned the properties and started enjoying their respective shares separately but at the time of that general partition kept an item of property joint for future division and took possession thereof subsequently by effecting its partition as per terms agreed in the general partition by a deed in writing, then, even though that deed was not registered, oral evidence could be let in to show that the members of the coparcenary took over their respective shares of the property assigned under the partition deed effected subsequently."
67.It cannot be lost sight of that the joint ownership turns into possession and enjoyment in common until the physical possession takes place as per shares on the day of severance of status. This kind of physical partition is governed by Article 113 of the Limitation Act. Such a suit as per Article 113 of the Limitation Act is to be filed within three years from the time when the right of sue accrues. When notice of severance and demand for partition is served, the right of partition comes into forefront, but the right to sue does not accrue until the Defendant infringed or threatened to infringe that right.
68.In the decision of Hon'ble Supreme Court in Des Raj and others V. Bhagat Ram (deceased by LRs) and others, (2007) 3 MLJ 803 (SC), it is held that 'In a claim of adverse possession against co-owner, the starting point of limitation when the plaintiff in the present suit asserted hostile title in the written statement filed in earlier suit and claimed ownership, that it runs from the date of claim in written statement and without filing of successive suits for partition will not stop running of period of limitation."
69.As far as the present case is concerned, P.W.1 (9th Plaintiff in O.S.No.2 of 1985) in his evidence has deposed that in O.S.No.1227 of 1978, Ponnuswamy Naicker has filed suit O.S.No.1227 of 1978 claiming a share and Ex.A.2 is the Judgment delivered in that suit dated 24.08.1981 and that in the said suit, the Appellants herein and Defendants 4 to 8 are parties and in O.S.No.1227 of 1978 they consented for passing of a decree. A perusal of Ex.A.2-Judgment in O.S.No.1227 of 1978 dated 24.08.1981 shows that a suit filed by the Ponnuswamy Naicker has been dismissed.
70.Admittedly, as against the Judgment and Decree dated 24.08.1981 in O.S.No.1227 of 1978, no appeal has been preferred by the aggrieved parties. Without filing an appeal against the Judgment and Decree dated 24.08.1981 in O.S.No.1227 of 1978 on the file of trial Court, the Judgment and Decree of the trial Court in O.S.No.1227 of 1978 dated 24.08.1981 has become final, conclusive and binding between the parties. When that be the fact situation, this Court is of the considered view that the present suit O.S.No.2 of 1985 filed by the Appellants herein claiming 1/4th share in the suit properties and for permanent injunction is clearly barred by the principles of 'Res Judicata'.
71.It is the case of the Respondents/Defendants that Defendants 1 to 3 and their parents have been in possession of the suit property from the year 1928 to 1974 and that on 27.03.1940 the Chinnammal owner of the property has partitioned the suit properties and also that the 1 and 2 Defendants' mother Kanniammal in respect of 83 cents of the suit schedule property and in respect of other properties executed a Gift Deed to the 2nd Defendant-Chellammal and her husband Sundaramurthy and also 40 cents in the suit property has been gifted to the 1st Defendant and further, as per Gift Deed dated 05.07.1968 a land has been given and therefore, the Respondents/Defendants have been in possession and enjoyment of the suit properties for long time and paying kists and as such, the Appellants/Plaintiffs rights if any in the suit properties have become extinct not only by operation of law, but also by means of limitation, in the considered opinion of this Court. Accordingly, this Court holds that the suit O.S.No.2 of 1985 on the file of Sub Judge, Poonamallee is barred by the principles of 'Res Judicata' and on the plea of Limitation and the Substantial Question of Law No.1 is so answered.
The Contentions, Discussions and Findings on Substantial Question of Law No.2:
72.It is to be pointed out that the onus of proof is on the person claiming an adverse possession. In law, a person must plead when his possession commenced and when he denied the title of the true owner and further, mere possession is not sufficient to establish the plea of adverse possession as per decision in M.Velusamy and others V. P.Kandasami and another, 1999 III MLJ 692.
73.As a matter of fact, for adverse possession, there must be exclusion or ouster. The subsequent possession should be for a statutory period and ouster involved should not be merely act of person ousting but state of mind as per decision in T.Subramania Nadar V. T.Natarajan, AIR 2003 Madras 364.
74.The issue is whether the Appellants/Plaintiffs are entitled to the properties on the ground of adverse possession in the absence of clear proof, the possession of one sharer must be considered as a possession on behalf of all.
75.In the decision of Hon'ble Supreme Court in Santhosh Rani Jain and another V. State of West Bengal, AIR 1998 SC 2633, it is held that 'the case of ouster of claimant co-sharer was not made out unless it was established by convincing evidence that he has been ouster from the disputed property.'
76.It is to be noted that where plaintiff makes a claim to the property that he is the owner of the same, he cannot plead adverse possession, in the considered opinion of this Court.
77.If there is no evidence to prove possession for well over two decades, then, ordinarily the claim of adverse possession/title is also not proved, as opined by this Court.
78.It is an axiomatic principle in law that the acts amounting to adverse possession must be scrutinised in the light of relationship that exists between the parties.
79.In the decision Bhageerathi Ammal V. Kuppalammal and others, 1990-Vol.1-MLJ-463 at page 464, it is held that 'the co-owners cannot claim adverse possession unless there is strong proof of ouster.'
80.To constitute adverse possession between near relatives the evidence of ouster must be very strong as per decision in Puttathayamma and another V. Rathnarajiah and another, AIR 1955 Mysore 33.
81.In Perumal V. Boyot Selvacarassou, Power Agent, Boyot, Virappin (2002) 2 MLJ 150, it is held that 'the rights of real owner cannot be defeated without clear details regarding adverse possession.'
82.In Munusamy Gounder and another V. Sadasivam, (2005) 1 MLJ 584, it is observed that 'the Plaintiff having denied the title of the Defendant has failed to prove adverse title and as such, the relief of declaration cannot be granted.'
83.There is a distinction between adverse possession and possession simpliciter. An adverse possession cannot operate in the vaccum Article 65 of the Limitation Act, 1963 applies not merely to the want of actual possession by the real owner, it comes into operative play only when an individual in occupation of the statutory period is such occupation in denial of the title of the real owner. There can be no adverse possession without animus to prescribe.
84.The question of adverse possession is a mixed question of law and fact. If persons claim title by adverse possession, it is their duty to make specific allegation in the Plaint and lead evidence on facts from which they can ask the Courts to drawn inference that the established facts amount to adverse possession in law.
85.In law, a possession which can be referred to a lawful title cannot be considered as adverse in law.
86.In the present case on hand, the Appellants/Plaintiffs have averred in paragraph 6 of the Plaint that they are enjoying a portion of the suit property and paying land tax for the said enjoyment. The suit property has not been cultivated from 1970 and thereafter it remains vacant till date. The Defendants 1 to 8 have been postponing the division of the suit property etc. and further they have no exclusive right over the suit property and they are only co-sharers along with the Appellants/Plaintiffs in relation to the suit property etc.
87.However, the Respondents/Defendants in their Written Statement have pleaded that the suit property has already been divided along with the other items between the real shares from the entire exclusion of the father of the Appellants/Plaintiffs and that he was not entitled to any share in the suit property and also that the Appellants/Plaintiffs have not impleaded all the parties necessary to the partition suit. Moreover, the Respondents/Defendants 1 to 3 already sold various portions of the suit property to several persons etc. Inasmuch as Defendants 1 to 3 and the parents have been in possession of the suit property from the year 1928 to 1974 and they have also changed patta, it is crystal clear that the Appellants/Plaintiffs have no right to claim partition and since both the Courts below have come to a conclusion that oral partition has taken place on 27.03.1940 as per evidence of D.W.1 and D.W.2 and further, even in Ex.B.16-Will dated 20.10.1950, there is a mention about the partition that has taken place on 27.03.1940. Therefore, the plea of Ouster and Adverse Possession being pure questions of fact cannot be raised by the Appellants in Second Appeal. Furthermore, the findings of pure facts rendered in earlier suit O.S.No.1227 of 1978 based on oral and documentary evidence adduced by parties are binding on the Appellants/Plaintiffs and viewed from that angle, the present suit O.S.No.2 of 1985 is barred by the principles of 'Res Judicata'. In any event, in the instant case on hand, it cannot be said that the lower Court has not appreciated the position of law that unless Ouster is proved a co-owner cannot perfect title by adverse possession and accordingly, the Second Substantial Question of Law No.2 is answered against the Appellants/Plaintiffs.
88.In the result, the Second Appeal is dismissed, leaving the parties to bear their own costs. Consequently, the Judgments and Decrees of the First Appellate Court dated 07.02.1990 in A.S.No.71 of 1989 and that of the trial Court dated 23.06.1988 in O.S.No.2 of 1985 are affirmed by this Court for the reasons assigned in this Appeal.
Sgl
To
1.The District Judge,
Chengalpattu.
2.The Sub Judge,
Poonamallee
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