Back
2022 Supreme(Online)(MAD) 31352
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on: 02.11.2022 Pronounced on:25.11.2022 CORAM: JUSTICE N.SESHASAYEE S.A(MD).Nos.872 and 873 of 2014 In both appeals:
Nadar Uravinmurai Rep. By its President Pechimuthu S/o Andi Nadar .... Appellant/Appellant/ Defendant-1 (Name of the President is substituted Vide court order dated 18.07.2022 made in C.M.P(MD)No.6114 and 6115 of 2022 in SA(MD) Nos. 872 and 873 of 2014)
Vs
1. Paulraj (Died)
2. Kamaraj (Died)
3. Ramachandran ... Respondents 1 to 3/Respondents 1-3/
Plaintiffs 1 – 3
4.Muruganandam
5.Ganesan .. Respondents/Respondents 4 & 5/
Plaintiffs 4 & 5
6.Kaleeswari
7.Maruthu
8.Ponrani .. Respondents/Respondents 6 – 8 Defendants 5 – 7
9.Darmar
10.Pechimuthu ..Respondents/Respondents 9 – 10 Defendants 3 &8
11.Mari Ammal
12. Ponmathi
13.Kanniga Devi
14. Sivaraman
15. Annalakshmi
16.Ponmurugan
17.Palanivel ...Respondents 11 to 17 (R11 to R14 were brought on record as the lrs of the deceased R1 Vide Court order dated 30.11.2018 in C.M.P(MD)Nos.2374 to 2376/17 in SA(MD) Nos.872 & 873/14)
(R15 to R17 were brought on record as lrs of the deceased 2nd respondent Vide Court order dated 23.06.2022 made in CMP(MD)Nos.4138 & 4140 of 2022)
Prayer : Second Appeals are filed under Section 100 of Code of Civil Procedure, against the judgment and decree dated 19.12.2013 in A.S.No.46 of 2012 and Cross Objection No.46 of 2012 in A.S.No.46 of 2012 on the file of the Subordinate Court, Paramakudi, confirming the judgement and decree dated 14.12.2011 in O.S.No.50 of 2004 on the file of the District Munsif Court, Muthukulathur.
In both appeals:
For Appellant : Mr.S.Srinivasa Raghavan For R3 to R9 &
R11 to R17 : Mr.K.S.Balaji
COMMON JUDGMENT
The first defendant in O.S.No.50 of 2004, which was instituted for recovery of possession of the suit property and for mesne profits, is the appellant in both appeals. The trial court granted the plaintiff a decree for recovery of property but not his prayer for mesne profits. Aggrieved by the said decree, the first defendant preferred A.S.No.46 of 2021 whereas the plaintiffs filed their cross objection for denying them the mesne profits. The first appellate court dismissed the appeal but allowed the cross objection. Parties would be referred to by their rank in the trial court.
2.1 The facts are:
l A certain Duraisamy Nadar owned the western 4.77 acres out of a total extent of 4.82 acres in Survey No.259/2A1 in Naripaiyoor Village in Ramnad District under Ext.A.5 sale deed dated 17.06.1987, executed by one Cheeni Chettiyar.
l When he faced obstructions to his title and possession, he laid O.S.No.319 of 1987 for declaration of his title and also for prohibitory injunction to protect his possession against the defendants 2 to 4 in this case.
l The defendants entered appearance in that suit and took a plea that the suit property belonged to Cheeni Chettiyar, that he executed Ext.B.1 sale agreement, dated 6.10.1982, for the sale of the suit property in favour of the first defendant 'Nadar Uravinmurai', which is an unregistered association of persons belonging to the Nadar community of that locality.
l Ultimately, O.S.No.319 of 1987 came to be decreed partly Vide Ext.A.1 decree and Ext.A.2 judgment. The trial court, though declared the title of the plaintiff Duraisamy Nadar yet declined injunction, since it found that he was not in possession of the property. The plaintiff Duraisamy Nadar preferred A.S.No.3 of 1996 challenging the decree declining him a decree of prohibitory injunction by the trial court. The defendants 2 to 4 on their part had filed a cross objection challenging the declaratory decree granted to the plaintiff. The First Appellate Court dismissed both the appeal and the cross objection, Vide Ext.A.3 and Ext.A.4 judgment and decree.
l Sometime in 1998, Duraisamy Nadar died. His children have now filed the present suit in O.S.No.50 of 2004 as the plaintiffs. The first defendant is Nadar Uravinmurai. The defendants 2 to 4 were the defendants in earlier suit in O.S.No.319 of 1987. The defendants 5 to 8 are the children of Ponnusamy Nadar, who has since died. The present suit is laid for recovery of possession on the ground that the title to the property had been already granted in the earlier suit in O.S.No.319 of 1987 in favour of their father Duraisamy Nadar.
2.2 The defendants' principal contentions are twofold:
a) That Cheeni Chettiyar had entered into Ext.B.1 sale agreement with the first defendant but sold the property to Duraisamy Nadar. In the earlier round of litigation, Duraisamy Nadar did not implead the first defendant but impleaded only the defendants 2 to 4 in their personal capacity but not as representing the members of the first defendant association of persons. Therefore, the decree passed in O.S.No.319 of 1987 declaring the title of Duraisamy Nadar to the suit property will not bind the first defendant; and b) that at any rate, the defendants had perfected title by adverse possession.
3.1 The suit went to trial. The first of the five issues framed by the trial Court is, whether the judgement in O.S.No.319 of 1987 bind the defendants in the present suit? In plainer terms it would mean if the finding as to the genuineness of Ext.B-1 as found in O.S.No.319 of 1987 will operate as res judicata. Decreeing the suit partially, the trial court has held that the judgement in O.S.No.319 of 1987 will not constitute res judicata and proceeded to hold that even though it does not constitute res judicata, yet it will bind the defendants under Sec.13 of the Evidence Act, and directed the defendants to deliver vacant possession of the suit property. As regards claim of mesne profits, the suit was dismissed.
