1990 Supreme(Mad) 925

1991 2 MLJ 538
K.M. Natarajan, J.
C. Arumughathan
Versus
S. Muthusami Naidu And Ors.
Decided On : 26/10/1990
A.S.No.581 of 1981

A decision in a former suit should have been directly and substantially in issue in that suit and such issue must have been heard and finally decided by the court.

Headnote:

None

Fact of the Case:

The subject matter of this appeal is only in respect of item 42 of the plaint A Schedule properties, to an extent of 4.74 acres. According to the plaintiffs, the deceased first plaintiff and one Chinnama Naidu, who is the father of defendants 1 to 3, are brothers. The said Chinnama Naidu, who was the elder brother died on 1.1.1963 and they constituted a joint Hindu family. The properties described in A Schedule, including item 42, were comprised of the properties acquired by the deceased first plaintiff and the deceased Chinnama Naidu. The deceased first plaintiff is entitled to half share while defendants 1 to 3 who are the legal heirs of Chinnama Naidu are entitled to the remaining half share. One Alagan (since dead), the ninth defendant (appellant herein) and the 12th defendant are brothers. Defendants 4 to 8 are the heirs of the said Alagan. Defendants 10 and 11 are the sons of the ninth defendant and they constituted a joint Hindu family. The ninth defendant is the present joint family manager. Item 42 in the Plaint A Schedule properties originally belonged to the joint family of late Alagan and his two brothers. The deceased Alagan borrowed from Errammal wife of Thambu Chinnama Naidu, elder brother of the deceased first plaintiffs father. He also incurred other sundry debts for family expenses. In order to discharge the debt incurred by him, he executed a registered othi deed dated 25.11.1933 in favour of Errammal for Rs. 500 in respect of the said item. Errammal was in possession and enjoyment of the property as othidar. In view of the relationship of the parties, the deceased first plaintiff and his brother used to cultivate the othi land also on behalf of Errammal. Errammal died in or about 1946 leaving behind her the deceased first plaintiff and his brother as her heirs. The deceased first plaintiffs elder brother who was the senior member of the family for himself and on behalf of the first plaintiff was cultivating the othi land. In or about 1955 the deceased Alagan discharged the othi. Thereafter also, he was borrowing monies from others and othied the land. On 17.5.1956 Alagan and his two brothers (defendants 9 and 12) executed a registered sale deed in respect of the said item in favour of the deceased first plaintiffs elder brother Chinnama Naidu, he being the eldest male member of the family and he was managing the joint family. The family of the deceased first plaintiff had been paying kist for the said item even during the life time of Errammal. By virtue of their possession and enjoyment openly and continuously to the knowledge of defendants 4 to 12, the deceased first plaintiff and his elder brother and after his death, defendants 1 to 3, acquired the property by adverse possession. They also effected improvements by putting seemai karuvela live fence along the boundaries and planted mango and coconut trees. The ninth defendant's name was also included in patta No. 155 in respect of the said item. The deceased first plaintiff fell ill in or about May, 1973. On hearing that, defendants 4 to 12 were cutting the seemaikaruvela trees. The deceased first plaintiff sent for the first defendant and questioned him regarding cutting of the trees. It was only at that time, he came to know that the first defendant filed a suit O.S. No. 238 of 1974 on the file of the District Munsifs Court, Melur, for a permanent injunction restraining defendants 4 to 12 herein from interfering with his enjoyment of the said item. The said suit was dismissed. He was unsuccessful in the appeal, A.S. No. 181 of 1976 as well as the second appeal in the High Court. It is stated that then the deceased first plaintiff took the first defendant to task for not consulting him before filing the suit or for conducting the suit or appeal without his knowledge. Thereupon he got the papers relating to the proceedings and found that full instructions were not given for drafting the plaint and for conducting the said proceedings. He would state that since the deceased first plaintiff was not a party to the said suit, any decision therein cannot bind the deceased first plaintiff and cannot operate as res judicata Further, the District Munsifs Court, Melur, is not the competent court to try the suit. It is also stated that in view of the conduct of the first defendant, the deceased first plaintiff filed the suit for a declaration that item 42 belongs to the deceased first plaintiff and the first defendant and also for permanent injunction restraining defendants 4 to 12 from interfering with the first plaintiffs possession and enjoyment of the same jointly with the first defendant till a partition is effected and for partition and separate possession of his half share in the A and B Schedule properties or in the alternative f6r recovery of possession.

Finding of the Court:

The trial court for the reasons stated in the judgment, decreed the suit for declaration of the plaintiffs title and also the title of the first defendant in respect of item 42 and for recovery of possession of the same. The trial court also decreed the suit for partition of the plaint schedule properties by metes and bounds and allotment of half share to the plaintiff while dismissing the suit in respect of the relief of injunction. Aggrieved by the same, the ninth defendant has preferred this appeal challenging the finding in respect of item 42 of A Schedule properties.

Issues: 1. Whether the present suit filed by the father of plaintiffs 2 to 4, who are respondents 1 to 3 herein, is barred by the principle of res judicata in view of the earlier decision in O.S. No. 238 of 1974 which was confirmed in A.S. No. 181 of 1976 on the file of the District Court, Madurai, and S.A. No. 696 of 1977 High Court, Madras. 2. Whether the first plaintiff and the father of the first defendant have prescribed title to item 42 of the A Schedule properties by adverse possession. 3. Whether the alienation in favour of the first defendant's father by Alagan and his brothers defendants 9 and 12 under Ex. A-30 (original of Ex. A-2) is invalid for the violation of the condition of Panjamar assignment as contended by the appellant.

Ratio Decidendi: 1. The earlier decision in O.S. No. 238 of 1974 which was confirmed in A.S. No. 181 of 1976 on the file of the District Court, Madurai, and S.A. No. 696 of 1977 High Court, Madras, will certainly operate as res judicata to the present suit filed by the plaintiffs. 2. The plaintiffs have miserably failed to establish adverse possession for more than the statutory period and as such, they are not entitled to any declaration. 3. The alienation in favour of the father of the first defendant under Ex. B-30 is invalid for the reason that it is a Panjamar conditional assignment in favour of Alagan B/o the ninth defendant.

Final Decision: In the result, the appeal is allowed, the judgment and decree passed by the Subordinate Judge inspect of item 42 along are hereby set aside and the suit filed by respondents 1 to 3 plaintiffs inspect of item 42 is dismissed. However, in the peculiar circumstances of this case, the parties are directed to bear their respective costs throughout.