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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. VENUGOPAL
Chinnammal (died) & Others
Versus
Kaliammal (died) & Others
S.A.No.488 of 1992
Decided On : 20-02-2012
The Court held that the suit was barred by the principles of Res Judicata and Limitation. The Court also held that the appellants/plaintiffs are not entitled to the properties on the ground of adverse possession in the absence of clear proof.
Fact of the Case:
The appellants/plaintiffs filed a suit for partition and separate possession of their 1/4th share in the suit property. The defendants/respondents contested the suit claiming that the suit property was the separate and self acquired property of Chinnammal and that the same was partitioned among her sons, the fathers of the defendants 13 to 15 and daughter Chinnammal in the year 1940 and that 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.
Finding of the Court:
The Court held that the suit was barred by the principles of Res Judicata and Limitation. The Court also held that the appellants/plaintiffs are not entitled to the properties on the ground of adverse possession in the absence of clear proof.
Issues: 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?
Ratio Decidendi: The Court held that the suit was barred by the principles of Res Judicata and Limitation. The Court also held that the appellants/plaintiffs are not entitled to the properties on the ground of adverse possession in the absence of clear proof. The Court relied on the following principles of law: 1. A suit is barred by Res Judicata if the matter directly and substantially in issue in the subsequent suit was directly and substantially in issue in the earlier suit, was between the same parties, and was decided by such court. 2. A co-owner cannot perfect title by adverse possession unless ouster is proved.
Final Decision: The Court dismissed the Second Appeal and affirmed the Judgments and Decrees of the First Appellate Court and the trial Court.
1. 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,
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