An appellate court may admit additional evidence to correct material discrepancies between a decree and its parent judgment. A prior suit for injunction does not bar a subsequent suit for declaration of title due to the distinct nature of the causes of action.

JUDGMENT :

P.B. Balaji, J.

The plaintiff, in a suit for declaration and permanent injunction is the appellant, aggrieved by the concurrent findings of the trial court as well as the first appellate court.

2. The Second Appeal was admitted on 20.01.2020, on the following substantial questions of law:

1) Whether the observation of the Courts below that the suit property also had been directed to be partitioned under the decree in O.S.No.596 of 1974 is an error on the face of the record. While the Judgment and decree exempts the suit property in this case from the decree for partition on the ground that it belonged absolutely to Perumal Ammal and Errammal?

2) Whether the suit for declaration of title filed by the appellant /plaintiff is barred by Order 2 Rule 2 and Order 23 Rule 2(4)(b) of the Civil Procedure Code when the earlier suit in O.S.No.127 of 1997 for bare injunction had been dismissed for default?

3. I have heard Ms. Shivashree, learned counsel appearing for the appellant, and Mr. V.N. Arjun, learned counsel appearing for Mr. N.Vallinayagam, learned counsel appearing for the respondent.

4. The brief facts that may be necessary to decide the substantial questions of law framed in this Second Appeal are as follows:

(i) The suit property is an extent of 1 acre and 40 cents situated in Survey No.160/3 of Seelanaickenpatti Village and originally belonged to one Subba Naicker. Subba Naicker was blessed with two sons and two daughters. After the death of Subba Naicker, his two sons orally partitioned the family properties, and the northern 70 cents was allotted to Muthaiah Naicker, while the southern 70 cents was allotted to Vasimalai Naicker. Vasimalai Naicker married Errammal, the daughter of Perumalammal, and sold his 70 cents to his wife, Errammal. The mother of Errammal, namely Perumalammal, purchased the northern 70 cents from her brother, Muthaiah Naicker, by a registered sale deed dated 29.06.1962. Perumalammal resided with her daughter Errammal, since Perumalammal had misunderstandings with her husband, namely Veluchamy @ Velandi Naicker. She settled the northern half share purchased by her in favour of Errammal by a registered settlement deed dated 16.03.1994. By virtue of the said settlement, Errammal became the owner of the entire suit property.

(ii) Though Errammal did not mutate the revenue records, she was in possession and enjoyment of the suit property. In 1994, Vasimalai Naicker, along with one Palanichamy, attempted to interfere with the suit property, and hence Errammal and Perumalammal filed a suit in O.S. No.1210 of 1994 before the Sub Court, Madurai. Subsequently, the suit was transferred to the District Munsif Court, Thirumangalam, and was taken on file as O.S. No.127 of 1997. The suit was dismissed for default. Though Errammal attempted to set aside the dismissal of the suit by filing an application, the same was subsequently not pressed. In the meantime, the defendant, taking advantage of the dismissal of the suit, included his name in the patta. The plaintiff purchased Errammal’s property on 29.08.2008. The defendant caused a lawyer’s notice dated 28.10.2008 to be issued to the plaintiff and Errammal, to which the plaintiff sent a reply on 01.11.2008. Soon thereafter, the defendant attempted to trespass into the suit property purchased by the plaintiff. Hence, the suit for declaration and injunction was filed.

(iii) The suit was resisted by the defendant, contending that the suit property originally belonged to Chinna Velammal, the grandmother of the defendant, by way of a sale deed dated 04.04.1993. The sa