Plea of suspicions circumstances raised.

1. The above appeal is against the judgment and decree made in A.S.No. 32 of 1994 on the file of the Subordinate Judge, Gopichettipalayam dated 21.8.1995 which itself was preferred against the judgment and decree made in O.S.No. 265 of 1987 on the file of the District Munsif Court, Sathyamangalam. The plaintiff Valliammal who succeeded before the trial court but last before the first Appellate Court, is the appellant in this second appeal.

2. The plaintiff filed a suit for recovery of possession by making the following averments:

The suit schedule property as only a vacant site originally belonged to one Sivasubramania Sastriyar. Said Sivasubramania Sastriyar demised the property on lease in favour of one Kalianna Gounder for a period of one year on an annual rent of Rs.360. The first defendant is the brother of the said Kalianna Gounder. As per the agreement Kalianna Gounder has agreed to receive the amount to be paid by the landlord namely Sivasubramania Sastriyar as compensation for the superstructure to be put up by the lessee at the time of termination of the lease or eviction. The lease deed was executed by Kalianna Gounder in favour of Sivasubramania Sastriyar on these terms. In pursuance of lease Kalianna Gounder and the first defendant were put in possession of the suit property. Kalianna Gounder alongwith his brother the first defendant was doing business jointly; and so the first defendant also was in possession and enjoyment of the property pursuant to lease. After Kalianna Gounder died, the first defendant continu ed to do the business being the lessee in possession of the property. The plaintiff’s husband one late Muthusamy Gounder had purchased the suit vacant site from Sivasubramania Sastriyar for valuable consideration of Rs.15,000 as per the sale deed dated 29.6.1962. Muthusamy Gounder had also taken assignment of the lease dated 7.3.1962. Muthusamy Gounder died on 9.2.1983 leaving behind the present plaintiff and the children.

3. Muthusamy Gounder while he was in a sound and disposing state of mind had executed a registered Will dated 19.2.1981, as per which he bequeathed the suit property and other properties in favour of this plaintiff. On the death of Muthusamy Gounder the will has taken effect and the plaintiff has become entitled to the suit property. Kalianna Gounder and this defendant have became tenants holding over the suit property and this defendant is now in occupation of the suit property. Muthusamy Gounder during his lifetime filed O.S.No.481 of 1963 for recovery of the suit property from Kalianna Gounder and the latter contested the suit and the suit was decreed for arrears of rent but the prayer for recovery of possession was negatived. It was held that the plaintiff must proceed against the defendant for recovery of possession through the Rent Controller under the Madras Buildings (Lease and Rent Control) Act. Muthusamy Gounder accordingly filed HRCOP No.6 of 1966 before the Rent Controller, Gopichettipalayam and obtained an order of eviction. Kalianna Gounder and the first defendant preferred an appeal against the order in CMA No.39 of 1966 on the file of the Sub Court, Erode and the appeal was also dismissed. Kalianna Gounder and the first defendant preferred CRP No.601 of 1968 on the file of the District Court Erode which has also been dismissed. Again Kalianna Gounder and the first defendant preferred CRP.No. 1572 of 1970 on the file of the High Court, Madras and the revision was allowed and it was held that the landlord Muthusamy Gounder has to file a suit for recovery of possession before the Civil Court. Even while allowing CRP.No.1572 of 1970 the High Court has stated in its order that “the doctrine of res judicata; only belongs to the domain of procedure and it cannot be exalted to the status of a legislative direction between the parties, so as to determine the question as to the interpretation of enactment affecting the jurisdiction of the Court”. Therefore, the decisio