IMPORTANT POINTS
When co-defendants unitedly opposed third parties in earlier suit where there was no conflict between them and hence was not the issue, then in a subsequent suit between those co-defendants the earlier suits will not operate as res judicata.
Principle of estoppel is attracted when the person to whom the representation has been made has acted on the basis of such representation, and particularly to his own detriment.

JUDGMENT

MOHAN M. SHANTANAGOUDAR, J.

The legal representatives of the original defendant in O.S No.45/85 on the file of the Subordinate Judge, Cuddalore are the appellants before this Court. For the sake of convenience, the parties are referred by their status before the Trial Court.

2. The suit was filed by the respondents herein, seeking a declaration that ‘A schedule’ property (as described in the plaint) belongs to them or in the alternative for partition of half share in ‘B schedule’ property (as described in the plaint) of which ‘A schedule’ is a part. According to the plaintiffs (respondents herein), the properties originally belonged to two brothers namely, Pazanivelu Mudaliar and Chokalingam; Pazanivelu Mudaliar had two sons, namely, Narayanaswamy Mudaliar and Manickam. Narayanaswamy had a son named Gnanasambandam Mudaliar. The plaintiffs are the grandsons of Narayanaswamy being the sons of Gnanasambandam. On 21.7.1912, partition took place between the branches of Pazanivelu and Chokalingam, and the same was signed by Narayanaswamy (since Pazanivelu had expired by then) and Chokalingam. In the said partition, ‘A schedule’ property was allotted to Narayanaswamy and Manickam (who was then a minor), while the remaining 50% of the property left in ‘B schedule’ was allotted to Chokalingam. It is relevant to note here itself that the suit property totally measured 3.18 acres at the time of partition in 1912, which subsequently got reduced to 2.72 acres in view of natural calamities, sale of certain portions and resettlement etc. Thus, the share of each branch was reduced to 1.36 acres each. The property consisted of Survey No. 67. Narayanaswamy and Manickam being the sons of Pazanivelu Mudaliar partitioned the property allotted to the branch of their father in such a manner so as to allot the entire ‘A Schedule’ property to Manickam, on 5.4.1933, as per Exhibit A39. The said property allotted in favour of Manickam was sold by him to one Appavu Mudaliar on 11.9.1940 as per Exhibit A2. On 26.2.1942, the property purchased by Appavu Mudaliar was in turn sold in favour of Sambandam Mudaliar. On 9.2.1950, the property purchased by Sambandam Mudaliar was sold to Narayanaswamy Mudaliar as per Exhibit A3. After the death of Narayanaswamy Mudaliar in the year 1965, the plaintiffs being the grandsons of Narayanaswamy Mudaliar inherited the whole ‘A schedule’ property.

Meanwhile, Chokalingam’s half share was sold in a court auction on 21.12.1933 and was purchased by the original defendant’s father. There are no records to show that there was delivery of possession pursuant to the court auction sale; at any rate, the court sale could not confer more than the right, title and interest of the judgment debtor, namely Chokalingam’s half interest, which is 1.36 acres out of 2.72 acres recorded in the resettlement. Unfortunately, the entire ‘B Schedule’ property which was partitioned in 1912 was never demarcated inasmuch as the same was always used as a house site. Since the resettlement proceedings in 1976, this property comprises 3 pattas numbers. The plaintiffs’ father had also been paying house tax. The defendant had no right in ‘A schedule’ property. The defendant’s father and consequently the defendant did not have any right over the property in excess of Chokalingam’s half share, i.e., 1.36 acres. On 5.11.1978, in the partition in the family of the plaintiffs and their father, the ‘A Schedule’ property was allotted to Plaintiff No.2 as per Exhibit A40. Since the defendant attempted to trespass into the south western portion of the suit property (which falls under ‘A Schedule’) and prevented the plaintiffs from enjoying the same, the suit came to be filed.

The case of the defendant is that his father purchased the entire extent of Survey Number 67, i.e., 2.72 acres in a court auction (in execution of the decree in O.S.No. 20 of 1918) on 21.12.1933, which was confirmed on 29.9.1934, and possession was delivered to him; after his father’