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Nagomi v/s Evangeline & Another

    Second Appeal (MD) No. 938 of 2011 & M.P. (MD) No. 1 of 2011

    Decided On, 06 September 2018

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE C.V. KARTHIKEYAN

    For the Appellant: S. Parthasarathy, R. Jeyaraj, Advocates. For the Respondents: R1, V. Meenakshi Sundaram, R. Murugan, R2, P. Athimoolapandian, Advocates.



Judgment Text

(Prayer: The Second Appeal is filed under Section 100 of CPC, against the judgment and decree dated 29.06.2011 in A.S.No.71 of 2010 on the file of the II Additional Subordinate Court, Nagercoil reversing the judgment and decree dated 16.09.2010 in O.S.No.359 of 2005 on the file of the Principal District Munsif Court, Nagercoil.)

1. The first defendant in O.S.No.395 of 2005, on the file of the Principal District Munsif Court, Nagercoil, is the appellant.

2. O.S.No.395 of 2005 had been filed by the plaintiff, Evangeline, against the defendants, namely, Nagomi and Nagercoil Municipality, represented by its Commissioner, Nagerciol, for declaration and mandatory injunction and for costs of the suit. That suit was dismissed without costs by judgment and decree dated 16.09.2010. As against that judgment, the plaintiff filed A.S.No.71 of 2010 before the II Additional Subordinate Court, Nagercoil. The learned II Additional Subordinate Judge, by judgment and decree dated 29.06.2011, set aside the judgment and decree dated 16.09.2010, passed in O.S.No.395 of 2005 and allowed the appeal. The appeal was, however, dismissed as against the second defendant. Aggrieved by the said judgment, the first defendant, Nagomi, had filed the present second appeal.

3. The second appeal was admitted on the following substantial questions of law:

“Whether the lower appellate Court erred in non-suiting the appellant on the principle of res-judicata, since the plaintiff had filed O.S.No.115 of 1990 prior to the present suit on the same relief?&rdquo

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O.S.No.359 of 2005 :-

4. The plaintiff had instituted the suit with respect to the suit property measuring an extent of 5 cents and 550 Sq.links in Old S.No.2583 of Nagercoil Village, the plaintiff having her house was on the northern side of the plaint schedule property. The first defendant's house was on the western side of the suit schedule property. The plaintiff claimed to have purchased the property by a registered sale deed dated 15.04.1981 from S.R.Daniel. She claimed to be in exclusive possession and enjoyment of the suit schedule property. She is paying tax to the Government. She is using the property as a private pathway for her house from the main road. The defendants do not have any right, title or possession over the property. She had never handed over the property to the second defendant, Nagercoil Municipality. She had never executed any gift deed to the second defendant. The second defendant had never sanctioned the plaint schedule property as pathway. The first defendant is having a house on the western side of the plaint schedule property and also facing the main road. She has free access from the main road to her house.

5. Plaintiff had earlier filed earlier O.S.No.115 of 1990 against the first defendant and four others. That suit was filed to remove the encroachment made by the first defendant over the plaint schedule property. Since the obstruction was removed by the first defendant, the suit was dismissed as infructuous. Thereafter, the plaintiff was enjoying the plaint schedule property without any hindrance. However, the first defendant again put up an illegal opening and put up a gate facing the plaint schedule property. The plaintiff put up concrete pillars in the plaint schedule property on 03.05.2005, to erect wire fencing. However, the first defendant demolished the concrete pillars. Complaints were also given against the first defendant's husband. Consequently, the present suit had been filed for mandatory injunction directing the first defendant to close the gate and for declaration of plaintiff's title over the plaint schedule property.

6. The first defendant filed the written statement. She denied the allegations raised in the plaint. The first defendant claimed that she constructed two houses, one facing the plaint pathway, which has access to the main road only through the pathway and another facing the main road. The first defendant claimed that she constructed compound wall on her 15 cents alone. She then fixed an iron gate to create an exit and entrance to the pathway. She had purchased 15 cents land with right over the plaint pathway from Russel, in whose favour an agreement was executed on 05.02.1968, by the previous owners. It was also stated that the plaintiff had filed O.S.No.115 of 1990 and judgment was pronounced on merits. It had been stated that the plaintiff was not enjoying the pathway absolutely. The first defendant fixed an iron gate on 05.05.2005. The plaintiff tried to close the pathway and this was objected. Police complaints were given. It was claimed that there was no necessity to close the gate. The first defendant claimed that the suit should be dismissed.

7. The second defendant remained ex parte in the suit proceedings.

8. On the basis the pleadings, the learned Principal District Munsif, Nagercoil, framed the following issues for trial:

“a) Whether the plaint schedule property belongs to the plaintiff?

b) Whether the 1st defendant had made encroachment in the plaint schedule property?

c) Whether the plaintiff is entitled to a decree for declaration as prayed for?

d) Whether the plaintiff is entitled to a decree for mandatory injunction as prayed for?

e) To what other relief the plaintiff is entitled?”

9. The learned Principal District Munsif, Nagercoil, also framed the following additional issue for consideration:

“Whether the suit is hit by the principle of res judicata?”

10. During the trial, the plaintiff was examined as PW-1. She marked Ex- A1 to EX-A6. These included the certified copy of the sale deed in her favour and certified copy of the judgment in O.S.No.115 of 1990 on the file of the Principal District Munsif Court, Nagercoil. The first defendant was examined as DW-1. She also examined two independent witnesses, Paulraj and Samson as DW-2 and DW-3. She marked Ex-B1 to Ex-B4. The sale deed in favour of the first defendant, dated 19.08.1977 and an agreement dated 12.01.1968 were marked as Ex-B1 and Ex-B2.

11. The learned Principal District Munsif, Nagercoil, took the additional issue first. This was whether the suit was hit by the principle of res judicata?. This issue was raised in view of the fact that the plaintiff had earlier filed O.S.No.115 of 1990 claiming declaration of title over the very same pathway and also for a permanent injunction that the first defendant and her men should not make any construction over the pathway. The Principal District Munsif, Nagercoil, considered the earlier judgment, which was marked as Ex-A2 and also the noting that the encroachment had been removed and consequently, held that the suit had become infructuous. The learned Principal District Munsif, Nagercoil held that the present suit was barred by the principle of res judicata and accordingly dismissed, however, without costs.

A.S.No.71 of 2010:-

12. The plaintiff filed A.S.No.71 of 2010 challenging the dismissal of O.S.No.359 of 2005. This appeal suit came up for consideration before the II Additional Subordinate Judge, Nagercoil. The learned II Additional Subordinate Judge, Nagerciol, re-examined the evidence. The first issue taken up for consideration was whether the suit was barred by the principle of res judicata. It was found that in the earlier suit in O.S.No.115 of 1990, no finding was rendered with respect to the relief of declaration of title. Consequently, it was held that the suit was not barred by the principle of res judicata. Thereafter, the first appellate Court also re-examined the other issues and finally, by judgment dated 29.06.2011, set aside the judgment and decree dismissing O.S.No.359 of 2005 and allowed the appeal. The appeal was dismissed as against the second defendant.

S.A.(MD)No.938 of 2011:-

13. This second appeal, as stated above, had been filed by the first defendant in the suit. The only substantial question of law framed at the time of the admission of the appeal was whether the suit in O.S.No.359 of 2010 was barred by the principle of res judicata in view of the judgment in the earlier suit in O.S.No.115 of 1990 filed by the same plaintiff as against the same first defendant for the same relief of declaration of title and permanent injunction.

14. Ex-A2, is the certified copy of the judgment in O.S.No.115 of 1990. That suit was filed with respect to the same suit schedule property, namely, the pathway leading to the main road on the plaintiff's property. Even in that suit, the first respondent herein had complained that the appellant had put up a door and an opening into pathway. In that suit, the issues that were framed as follows:

“1) whether the plaintiff was entitled to the suit property?

2) Whether the first defendant had encroached into the suit property?

3) Whether the plaintiff was entitled for declaration of title with respect to the suit property?

4) Whether the plaintiff was entitled to the relief of permanent injunction?

5) to what other reliefs??

15. All the issues were taken up for consideration together. In the judgment, it had been noted that both parties had let in evidence and also marked documents. An Advocate Commissioner was also appointed and he had also filed his report. In the suit, the first respondent herein, had consented to remove the encroachment made. In the course of judgment, it was held as follows:

“TAMIL”

16. Mr.S.Parthasarathy, learned Counsel for the appellant pointed out the above findings and stated that in the earlier suit in O.S.No.115 of 1990, a competent Court had dismissed the said suit as infructuous. It is true that specific finding was not given on the issues relating to the title. The remedy available was to file an appeal against the said judgment. The learned Counsel was emphatic in his submission that a second suit for the same relief with respect to the declaration of was hit in view of Explanation V and Section 11 of the Code of Civil Procedure. Section 11 of Code of Civil Procedure is as follows:

“11. Res judicata:- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”

17. Explanation V of CPC is as follows:

“Explanation-V:-Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.”

18. The learned Counsel for the appellant pointed out that the relief sought for in the earlier suit with respect to the declaration of title was not granted in the decree and consequently, it was deemed to have been refused. Therefore, a second suit, would be barred under Section 11 of CPC.

19. In this connection, the learned Counsel for the appellant elaborated his arguments by stating that even if a judgment is erroneous, the principle of res judicata would still apply. The learned Counsel relied on 2000-2-LW- 516, in the case of T.Kolappan and Boothanatha Pillai vs Meenakshi and 13 others. A learned Single Judge of this Court had held that however erroneous decision might be in deciding the law, it will still operate as res judicata. The only exception is that the decision was made without jurisdiction. In the present case, a Competent Court had passed a judgment in the earlier suit.

20. The learned Counsel for the appellant also relied on AIR 1977 SC 1112, wherein, the Supreme Court held that if a relief was not granted and if it was not taken up in appeal, the same cannot be agitated in subsequent proceedings.

21. Mr.V.Meenakshi Sundaram, learned Counsel for the first respondent disputed the contentions raised. The learned Counsel for the first respondent relied on 1996(1) SCC 735, in the case of State of Maharastra and anther vs National Construction Company, Bombay and another, wherein, it had been held that the important words in Section 11 are that the issue had been heard and finally decided. It was pointed that in O.S.No.115 of 1990, the issue of declaration of title was not finally decided and consequently, the learned Counsel for the first respondent insisted that the suit was not barred by the principle of res judicata.

22. The learned Counsel for the first respondent also relied on AIR 1976 SC 1569, in the case of Syed Mohammed Labbai and others vs Mohammed Hafia and and others, wherein, the Supreme Court had laid down the following conditions as essential before a plea of res judicata can be given effect:

“1) that the litigation parties must be the same;

2) that the subject-matter of the suit also must be identical;

3) that the matter must be finally decided between the parties; and

4) that the suit must be decided by a court of competent jurisdiction.?

23. I have carefully considered the arguments advanced. The present suit was filed by the plaintiff over the same pathway over which she had instituted the earlier suit in O.S.No.115 of 1990, where she had sought a declaration that the title vested with her. It was also filed against the first defendant in the present suit. Even in the present suit, she had claimed declaration of title. In the earlier suit, the first defendant had created obstruction by opening a door. That was voluntarily removed and consequently, the Court held that the suit had become infructuous. The Court, unfortunately, did not give any finding on the issue of declaration of title. It was, therefore, clear that no finding had been rendered over the title to the property in O.S.No.115 of 1990. Consequently, there cannot be any discussion, whether the finding was erroneous or not erroneous. The Court simply did not give any finding. The suit was held to be infructuous since the obstruction complained had been removed. The suit was dismissed without rendering any finding on the relief of declaration of title.

24. An appeal would lie, if a final adjudication had been given on the reliefs claimed in the plaint. If a relief had being negatived by a judgment and hence does not find a place in the decree, then the plaintiff cannot certainly file an other suit. IN the present case, the Court had failed in duty to render a finding on the reliefs sought. There is a thin line dividing the right to file an appeal and the right to institute a second suit. An appeal has to be filed against a judgment which is erroneous. I hold that when a suit is dismissed without rendering a specific finding on the reliefs claimed and when it is pleaded that the first defendant has again acted in a manner giving rise to a fresh cause of action, then a second suit is maintainable. Even in the earlier suit, by interpreting the act of removing the encroachment, it can be held that the first defendant herein had impliedly acknowledged the title of the plaintiff.

25. Consequently, I hold that the suit is not barred by the principle of res judicata. The first appellate Court had given findings on facts I hold no infirmity in the same. Infirmity has also not been pointed out. I find no reason to differ from the same. The second appeal is, therefore, dismissed, however, in the circumstances of the case, without costs. Consequently, connected miscellaneous petition is closed.
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