Wrong interpretation of observation of High Court.

1. Plaintiff in O.S. No. 776 of 1981, on the file of District Munsif, Tiruchengode, is the appellant.

2. The appellant filed the suit for declaration of his title to the properly and for recovery of possession from the defendant and for mesne profits. It is his case that the plaint property was purchased by his father under Ex.B21 dated 30-10-1919, and the plaintiff and his father were, residing together in the same house. They borrowed certain amounts from one Palani Chetty on a promissory note and mortgage. To discharge those debts, the plaintiff and his father had executed a sale deed in favour of Palani Chetty and got a reconveyance agreement from him. The said sale deed was not registered. At that time the plaintiff leased put the house to Palani Chetty. Palani Chetty, and his wife Ponnammal were living in the house as tenants under the plaintiff. As the sale deed was not registered, Palani Chetty filed a suit on the pronote and the plaintiff and his father contested the same on the ground that the debts have been discharged by that sale deed. While the suit was pending Palani Chetty died. After trial the suit was also dismissed. In order to get possession of the suit property from Ponnammal, who was a tenant, plaintiff and his father executed a sham and nominal sale deed on 12-7-1962 in favour of the defendant, as they were advised by their Advocate Mr. M.S. Vijayaraghava Chariar. Plaintiff was further advised by his Advocate that an agreement of reconveyence can be taken from the defendant, and the defendant also executed a reconveyance agreement. After that sale, plaintiff filed O.S. No. 596 of 1963. on the file of District Munsif, Sankari, through the defendant for recovery of possession from Ponnammal. All proceedings were taken only in the name of the defendant as he was on record in order to get possession. Ultimately the matter was settled by paying a sum of Rs. 3,700/- to Ponnammal. In that suit all the prior title deeds in respect of the plaint property were also filed. On settlement of dispute, the defendant obtained possession of the property and also all the prior title deeds. The plaintiff further said that the possession of the defendant was that of a tenant on his agreeing to pay monthly rent of Rs. 60/-. In the year 1969, plaintiffs father died and thereafter, plaintiff requested the defendant to pay rent and give possession. Defendant refused to do so, and therefore, a notice was issued to the defendant to surrender vacant possession, and also to reconvey the properly as was agreed by him. The defendant denied the reconveyance agreement, and therefore, a suit was filed as O.S. No. 805 of 1973, on the file of District Munsif of Sankari at Salem, for specific performance of the contract of the reconveyance agreement. The suit was dismissed by the trial Court and confirmed in appeal in A.S. No. 100 of 1975, on the file of II Additional Subordinate Judge, Salem. The plaintiff took the matter in appeal before this Court as S.A. No. 224 of 1977. It was also dismissed on 19.7.1978. While dismissing the Second Appeal, this Court observed that the plaintiff can seek the relief of declaration of his title, as it was contended that the sale deed dated 12.7.1962 is sham and nominal. This observation, according to the plaintiff amounts to a liberty given to the plaintiff to file a fresh suit for title, and therefore, the present suit was filed for declaration of his title and recovery of possession with mesne profits.

3. The main contention raised by the defendant was that the suit is barred by res judicata. It was also contended that the sale deed in his favour dated 12.7.1962 is not sham and nominal. The property was purchased for valid consideration, and at any rate, since he is in possession denying the right of the plaintiff, the suit is also barred by Limitation and adverse possession.

4. The trial Court as per Judgment dated 30.7.1981, dismissed the suit that costs. The trial Court held that the earl