IMPORTANT POINT
The court established that a unified decree involving both a suit and counter claim can be appealed as a single entity, and failure to raise res judicata at the appropriate stage results in waiver of that defense.

JUDGMENT :

PRAYER: Second Appeal filed under Section 100 of C.P.C., against the judgment and decree passed in A.S.No.59 of 2006 dated 26.11.2008 on the file of the Sub-Court, Kovilpatti reversing the judgment and decree passed in O.S.No.208 of 2003 dated 24.04.2006 on the file of the District Munsif Court, Kovilpatti.

The defendants 1, 2, 4, 5 and the legal heirs of the third defendant are the appellants. The respondent herein filed a suit seeking declaration of title and recovery of possession in respect of the encroached portion of the suit property. The plaintiff also sought for injunction in respect of the remaining portions. The defendants filed counter claim seeking declaration that suit items 1, 2, 3 (4 and 6) and 5 belonged to the defendants 3, 4, 2, 1 and 5 respectively and for consequential injunction. The suit was dismissed by the trial Court and the counter claim preferred by the defendants was decreed as prayed for. Aggrieved by the same, the plaintiff preferred an appeal before the first appellate Court and the first appellate Court allowed the appeal and granted decree for recovery of possession. Aggrieved by the same, the defendants have come by way of this Second Appeal.

2. According to the respondent/plaintiff, the suit property is ancestral property belonged to the forefathers of the plaintiff. The suit property was enjoyed by the plaintiff’s father Ramasamy Reddiar with patta in his name. After death of plaintiff’s father, he succeeded to the suit property and patta was also transferred to his name. Thus, the plaintiff has been enjoying the same, by paying tax to the Government. Since the plaintiff went out of the suit village, in connection with his work, the suit property is lying waste without any crop. The defendants were permitted by the plaintiff to store hay sticks in the suit property. After plaintiff returned to his native place, permission granted to the defendants was cancelled and the plaintiff has been enjoying the same. The defendants made an attempt to encroach the suit property and hence, the present suit was laid initially seeking injunction. Pending suit, the defendants trespassed into the suit property and started collecting hay sticks and also laid stones in the suit property. Therefore, the plaint was amended seeking declaration of title and recovery of possession.

3. The defendants filed a written statement admitting the title and possession of plaintiff's father Ramasamy Reddiar. However, the averments in the plaint as if plaintiff succeeded to the suit property after death of his father and he has been in possession and enjoyment of the same were specifically denied. The averments regarding permission granted to the defendants and its subsequent cancellation were also denied. It was claimed by the defendants that the plaintiff’s father Ramasamy Reddiar wanted to sell the suit property to meet the family necessity and approached one Chennappa Reddiar of Nagampatti to sell the suit property. The said Chennapa Reddiar contacted the defendants 1 to 4 and father in law of 5th defendant Kumarasamy Reddiar and clinched the deal for purchase of the suit property by the defendants at the rate of Rs.150/- per cent. The defendants claimed that the plaintiff orally sold the property to the defendants as per consideration mentioned above. In support of the oral sale, a document was executed in a stamp paper with a value of Rs.2.50 paise. The plaintiff agreed to execute the sale deed in respect of separate portions of the suit property sold to each of the defendants. The defendants also filed a plan along with the written statement depicting separate portions sold to the defendants 1 to 5 with common pathway on the Southern side. After purchase, the defendants approached the Village Administrative Officer and had put up boundary stone in respect of the portions purchased by each of them. The defendants also claimed that they had been in possession and enjoyment of the portions of the suit property pur