The doctrine of res-judicata does not apply when the findings in a previous suit are incidental and do not directly address the ownership issue in a subsequent suit.

JUDGMENT :

This second appeal has been filed challenging the judgment and decree passed by the Principal Sub-Court, Mayiladuthurai, in A.S.No.53 of 2017, dated 20.03.2020.

2. In the suit, the appellant herein is the plaintiff and the respondent herein is the defendant. In the forthcoming paragraphs, the parties will be referred to as per their litigative status in the suit.

3. The suit in O.S.No.156 of 2014 on the file of the Additional District Munsif Court, Mayiladuthurai, was filed by the plaintiff against the defendant for declaration, recovery of possession and recovery of arrears of rent.

4. The plaintiff claims that the plaintiff is the owner of the suit schedule property by virtue of an oral Hiba obtained from his mother Rehmana Beevi through a Hiba confirmation letter dated 10.03.1995. Subsequent to the said Hiba, patta has also been transferred in his name. According to the plaintiff, the defendant was allowed to occupy the suit schedule property on a monthly rent of Rs.10/- and he has failed to pay the arrears of rent. The plaintiff has also pleaded that he had earlier filed a suit in O.S.No.408 of 2004 on the file of the Additional District Munsif Court, Mayiladuthurai, seeking for recovery of possession from the very same defendant, who was his tenant and who had failed to pay the rent and was an unauthorized occupant. According to the plaintiff, even though the suit in OS.No.408 of 2004 filed by the plaintiff came to be dismissed on 19.01.2006, the decision in the said suit does not have any bearing in the present suit (O.S.No.156 of 2014) filed subsequently by the plaintiff and is also not hit by the principles of res-judicata for the following reasons:-

(a) The earlier suit in O.S.No.408 of 2004 was filed for recovery of possession on the ground that there was a landlord-tenant relationship between the plaintiff and the defendant, and the cause of action in the earlier suit is different from the cause of action in the subsequent suit in O.S.No.156 of 2014.

(b) Since the defendant had disputed the Hiba executed in favour of the plaintiff by his mother Rehmana Beevi in the earlier suit in O.S.No.408 of 2004, the plaintiff was constrained to file the subsequent suit in O.S.No.156 of 2014.

(c) The decision rendered in O.S.No.408 of 2004 filed by the plaintiff seeking for recovery of possession based on a landlord-tenant relationship, which came to be dismissed on 19.01.2006, could not be challenged by the plaintiff immediately, since he was living in abroad at that time.

5. However, the defendant has contended as follows:-

(a) The suit in O.S.No.156 of 2014 filed by the plaintiff amounts to res-judicata, as in the previously instituted suit by the very same plaintiff in O.S.No.408 of 2004, a finding has been rendered against the plaintiff by holding that the plaintiff has not proved his title over the suit schedule property.

(b) There are discrepancies in the survey number disclosed in the registered sale deed standing in the name of the plaintiff's mother Rehmana Beevi dated 06.01.1973 and the Hiba confirmation letter dated 10.03.1995, through which, the plaintiff claims ownership of the suit schedule property.

(c) There is no valid Hiba executed by Rehmana Beevi in favour of the plaintiff, since the possession has not been delivered to the plaintiff by Rehmana Beevi in the said Hiba. Since the defendant continues to remain in possession of the suit schedule property, Rehmana Beevi could not have delivered possession of the suit schedule property to the plaintiff, which is an essential element of Hiba.

6. Based on the pleadings of the respective parties, the following issues were framed by the Trial Court in O.S.No.156 of 2014:-

"1. Whether the plaintiff is having title for the suit schedule property?

2. Whether the plaintiff is entitled for the relief of declaration as prayed for?

3. Whether the plaintiff is entitled for the relief of recovery of possession as prayed for?

4. Whether the plaintiff is entitled for relief of rent