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2013 Supreme(Mad) 1480
High Court of Judicature at Madras
M. JAICHANDREN & M.M. SUNDRESH
Chandrapal Sharma & Another
Versus
Sumathi Devi (Deceased) & Others
Original Side Appeal No. 20 of 2013 & M.P.No. 1 of 2013
Decided on: 03-04-2013
For the Appellants:M.L. Ramesh, Advocate.
For the Respondents:R1 & R2, B. Balachandran, R3 & R8, M. Kumaraswami, Advocates, R4 to R7, R8 & R9, No appearance.
A subsequent suit is maintainable when the previous decree has become unenforceable and there is no actual division of status leading to delivery of each share to a co-owner.
Headnote:
res judicata - Property Partition - C.S.No.418 of 2007 - 1. Are not the plaintiffs entitled for a declaration that they are entitled to 1/3rd share in the 1/3rd share of their late father Ramlal Sharma in the suit schedule properties? 2. Are not the plaintiffs entitled to a decree for partition by metes and bounds in respect of the suit schedule properties? 3. Are not the plaintiffs entitled for a decree for permanent injunction against the defendants 1 to 8, from in any manner interfering with plaintiffs' peaceful possession of the suit schedule properties? 4. Are not the plaintiffs entitled for recovery of Rs.4,32,000/- from the defendants 1 to 8 towards mesne profits in respect of the suit schedule properties? 5. Are not the plaintiffs entitled for future mesne profits in respect of the suit schedule properties? Additional Issues: 1. Whether the suit is barred by res judicata? 2. Whether the defendants 3 and 4 are liable to pay mesne profits? - The court discussed the issue of res judicata and the entitlement of the plaintiffs to their shares, and concluded that the present suit is not barred by res judicata as the earlier decree was a nullity and inexecutable, and the plaintiffs were seeking a higher share than that was granted earlier. The court referred to legal principles from previous judgments to support its decision.
Fact of the Case:
The suit was filed for declaration of shares and consequential partition as well as incidental reliefs. The main plea taken in the written statement was regarding res judicata since a preliminary decree had already been granted by the Court at the instance of the ninth defendant. The unsuccessful defendants 3 and 4 in the suit appealed the decision.
Finding of the Court:
The court found that the present suit was not barred by res judicata as the earlier decree was a nullity and inexecutable, and the plaintiffs were seeking a higher share than that was granted earlier. The court also directed an enquiry to be conducted for the claim of mesne profits.
Issues: The main issue was whether the present suit was barred by res judicata, and whether the defendants 3 and 4 were liable to pay mesne profits.
Ratio Decidendi: The court held that a subsequent suit is maintainable when the previous decree has become unenforceable and there is no actual division of status leading to delivery of each share to a co-owner. The court referred to legal principles from previous judgments to support its decision.
Final Decision: The Original Side Appeal was dismissed, and no order as to costs was made. The connected miscellaneous petition was also dismissed.
M.M. Sundresh, J.
1. The unsuccessful defendants 3 and 4 in a suit in C.S.No.418 of 2007, which was filed for declaration of shares and consequential partition as well as incidental reliefs, are the appellants herein.
2. The suit properties originally belonged to one Bansilal Sharma, Ramlal Sharma and Rathanlal Sharma. The suit properties have been purchased under two separate sale deeds marked as Exs.P1 and P2. Ramlal Sharma died on 22.07.1977 leaving behind the plaintiffs and the ninth defendant as his legal heirs. Ex.P5 is the Legal Heir Certificate. Bansilal Sharma died on 06.12.1995 leaving behind defendants 1 to 7 as his legal heirs. Ex.P4 is the Legal Heir Certificate.
3. The ninth defendant earlier filed a suit in C.S.No.1460 of 1993 seeking partition. The suit was decreed ex-parte on 20.01.2004. Pending suit, even prior to the decree passed, Bansilal Sharma died as early as on 06.12.1995. Thereafter, the suit was filed by the plaintiffs seeking partition of 1/3rd share in the 1/3rd share of the deceased Ramlal Sharma in the suit properties.
4. The second defendant and the third defendants have filed written statements. The second defendant supported the case of the plaintiffs and the fourth defendant that of the third defendant. These two defendants viz., defendants 3 and 4, are the appellants herein. The main plea taken in the written statement is regarding res judicata since a preliminary decree has already been granted by this Court at the instance of the ninth defendant. In other words, there is no serious dispute regarding the entitlement of the parties to their respective shares. Defendants 2 and 3 alone cross-examined P.W.1. Defendants 1 and 5 to 8 were set ex-parte. The learned single Judge has framed the following issues for proper adjudication of the suit.
"1. Are not the plaintiffs entitled for a declaration that they are entitled to 1/3rd share in the 1/3rd share of their late father Ramlal Sharma in the suit schedule properties?
2. Are not the plaintiffs entitled to a decree for partition by metes and bounds in respect of the suit schedule properties?
3. Are not the plaintiffs entitled for a decree for permanent injunction against the defendants 1 to 8, from in any manner interfering with plaintiffs' peaceful possession of the suit schedule properties?
4. Are not the plaintiffs entitled for recovery of Rs.4,32,000/- from the defendants 1 to 8 towards mesne profits in respect of the suit schedule properties?
5. Are not the plaintiffs entitled for future mesne profits in respect of the suit schedule properties?
Additional Issues:
1. Whether the suit is barred by res judicata?
2. Whether the defendants 3 and 4 are liable to pay mesne profits?"
5. Before the learned single Judge, the arguments were advanced on the plea of res judicata. The learned single Judge was also pleased to observe that there is no dispute with regard to the status and the allotment of shares. Further more, as the arguments were focussed only on the issue of res judicata, it can be safely concluded that the appellants accepted the rightful share of the parties. Therefore, the learned single Judge, on a consideration of the entire materials available on record, was pleased to decree the suit. In so far as the claim of mesne profits is concerned, the learned single Judge has rightly directed that an enquiry shall have to be conducted. Challenging the same, defendants 3 and 4 being the appellants, have filed the present Original Side Appeal.
6. The learned counsel appearing for the appellant would contend that respondents 1 and 2 being the plaintiffs, cannot maintain the present suit. The earlier suit having been decreed at the instance of the ninth defendant herein, the only course open to the plaintiffs is to file an application for final decree in the said suit. As the issue involved between the parties has already been decided, the present suit is barred by res judicata. The contentions of the appellants were also sought
