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2012 Supreme(Mad) 2984
High Court of Judicature at Madras
T. RAJA
Ramasamy Gounder
Versus
Uma Maheswari & Another
Second Appeal No. 581 of 2005
Decided on : 13-07-2012
For the Appellant:A.K. Kumaraswamy, Advocate.
For the Respondents:R. Subramaniam, for M. Narayanasamy, Advocates.
The judgment and decree in an earlier suit do not bind parties in a subsequent suit if the disputed property was not covered in the earlier suit and continuous possession and enjoyment of the disputed property is not proven.
Headnote:
Estoppel - Property Dispute - O.S.No.234/87 - ABE portion - Survey No.557/3 - Survey No.557/4 - Sathyamangalam Taluk - Gopichettipalayam Registration District - Sathyamangalam Sub Registration District - Pudupeerkadavu village - A Bridge - Maool pathway pasanavar - North: Defendant's land; South: Ramasamy Goundar land and Saragammal's land; East: Road; West: Another Ramasamy's land - An extent of 0.59.5 acre (0.24 hectares) situated in Sathyamangalam Taluk, Puthupeerkadavu Village, (Survey No.557/3, 2.97 acres/1.20 hectares), located south to the land of first defendant, west to south-north road, east to the land purchased by the second defendant in Survey No.556/3 and north to land of the plaintiff in Survey No.557/4 -- shown as ABE in the plaint schedule, BAE boundary along with coconut trees -- within the jurisdiction of Sub-Registrar's of Gopichettipalayam - A.B. portion - O.S.No.453/1984 - O.S.No.208/2002
Fact of the Case:
The plaintiff filed a suit for declaration and permanent injunction against the defendants in respect of the suit property covered in Survey No.557/3 to an extent of 59.5 cents, claiming possession and enjoyment of both the lands bearing Survey Nos.557/3 and 557/4. The defendants contested, stating that the earlier suit did not cover the present suit property and the plaintiff failed to prove possession of the disputed property.
Finding of the Court:
The first appellate Court reversed the trial Court's judgment, finding that the disputed suit property was not the subject matter of the earlier suit and the plaintiff failed to prove possession. The second appeal was dismissed, confirming the first appellate Court's decision and setting aside the trial Court's judgment.
Issues: Entitlement to declaration and permanent injunction, binding nature of earlier suit's decree, possession and enjoyment of disputed property
Ratio Decidendi: The disputed suit property was not covered in the earlier suit, and the plaintiff failed to prove continuous possession and enjoyment of the disputed property. The judgment and decree passed in the earlier suit did not bind the defendants in the present suit.
Final Decision: The second appeal was dismissed, confirming the first appellate Court's decision and setting aside the trial Court's judgment.
1. The present second appeal has been filed by the plaintiff as against the judgment and decree passed by the learned Principal Subordinate Judge, Gobichettipalayam, in A.S. No.33 of 2004, dated 25.11.2004, reversing the judgment and decree passed by the by the learned District Munsif, Sathyamangalam, in O.S.No.208 of 2002, dated 27.04.2004.
2. Brief facts leading to the filing of the second appeal are given as under:-
The plaintiff/appellant herein filed a suit for declaration and permanent injunction against the defendants in respect of the suit property covered in Survey No.557/3 to an extent of 59.5 cents, which is covered within ABE portion. It was also his further case that he had purchased the property under sale deed-Ex.A1, dated 16.05.1984, in Survey No.557/4, to an extent of 59.5 cents from his vendor and thereby, he was in possession and enjoyment of both the lands bearing Survey Nos.557/3 and 557/4. When there was a dispute in respect of the suit properties, the plaintiff had filed earlier a suit in O.S.No.234/87 against the defendants' vendor. In the said suit, the defendants' vendor also admitted the possession of the plaintiff in the area covered within ABE portion. However, the suit was not contested and as a result, an exparte decree dated 12.04.1993 was passed against the defendants' vendor. Therefore, it was submitted that it is not open to the defendants to deny the title and possession of the suit land covered in ABE portion having an extent of 59.5 cents. Therefore, when the dispute in respect of ABE portion was already concluded between the plaintiff and the defendants' vendor, the defendants' cannot interfere with the suit property. As the defendants attempted to interfere with the peaceful possession and enjoyment of the plaintiff's property, he has filed a suit with the aforesaid prayer.
3. Opposing the said prayer, the defendants filed their written statement stating that there was no reference to the present suit property either in the Original Suit filed in O.S.No.453/84 or in the exparte decree passed in O.S.No.234/87, dated 12.04.1993 by the Civil Court against the defendants' vendor. In fact, the issue decided in the earlier suit was whether he had title to the land covered in Survey No.557/4 or not, but not the suit property at all.
4. On the side of the plaintiff, he himself was examined as P.W.1 and one Subramani was examined as P.W.2 and 11 exhibits were marked as Exs.A1 to A11. On the side of the defendants, the second defendant was examined as D.W.1 and one Thangavel was examined as D.W.2 and 9 exhibits were marked as Exs.B1 to 9. On the pleadings and the materials placed, the learned trial Judge framed the following issues:
i. Whether the plaintiff is entitled to the relief of declaration?
ii. Whether the plaintiff is entitled to the relief of permanent injunction?
iii. To what other reliefs is the plaintiff entitled to?
5. The learned trail Judge, on appreciation of evidence produced by both sides, decreed the suit in favour of the plaintiff. Aggrieved by the same, when an appeal was filed by the defendants, learned first appellate Court, by giving a finding that the disputed suit property, namely, ABE portion, was not the subject matter of the earlier suit, nor the plaintiff was able to prove the trail Court that he was in possession of the suit property covered in ABE portion, reversed the judgment and decree passed by the learned trial Court. Aggrieved by the said judgment, the present second appeal has been filed by the plaintiff.
6. This Court, at the time of entertaining the second appeal, framed the following substantial question of law for consideration;-
"i. Is not the decree in O.S.No.234/87 on the file of District Munsif, Sathyamangalam, between the appellant and the respondents vendor, binding on the respondents and thereby they are estopped from contending contrary to the decree in that suit?"
7. Learned counsel appearing for the appellant submitted that
