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Devaki v/s Kandasamy

    S.A. No. 2188 of 2004

    Decided On, 23 July 2018

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE T. RAVINDRAN

    For the Appellant: B. Ramamoorthy, Advocate. For the Respondent: S. Sounthar, Advocate.



Judgment Text

(Prayer: Second Appeal has been filed under Section 100 of CPC against the Judgement and Decree dated 12.08.2004 passed in A.S.No.38 of 2003 on the file of the Subordinate Court, Tiruvarur, reversing the Judgment and Decree dated 11.02.2003 passed in O.S.No.76 of 1996 on the file of the District Munsif-cum-Judicial Magistrate, Nannilam.)

1. Challenge in this second appeal, is made to the Judgement and Decree dated 12.08.2004 passed in A.S.No.38 of 2003 on the file of the Subordinate Court, Tiruvarur, reversing the Judgment and Decree dated 11.02.2003 passed in O.S.No.76 of 1996 on the file of the District Munsif-cum-Judicial Magistrate Court, Nannilam.

2. The second appeal has been admitted on the following substantial questions of law:

(i). Whether the finding of the lower appellate Court that the question of title was left open in Ex.B3 and the said judgment will not operate as resjudicata, is correct without considering the finding that the suit property is part of Door No.7?

(ii). Whether the lower appellate Court has jurisdiction to go into the question of location of the suit property, which was declared as part of Door No.7 in Ex.B3?

(iii). Whether the finding of the lower appellate court that Ex.A1 to A4 proves the title of the respondent is sustainable in law and whether Ex.A1 to A4 can confer any title on the respondent?

3. Considering the scope of the issues between the parties in respect of the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail.

4. Suffice to state that the suit has been laid by the respondent against the appellant for the reliefs of declaration and possession in respect of the A schedule property as well as for the reliefs of declaration and permanent injunction in respect of the B schedule property or in the alternative for the reliefs of declaration and possession in respect of the B schedule property. The respondent had traced his title to the property in dispute based on the sale deed dated 24.04.1943 said to be standing in the name of his mother Muthulakshmi and the settlement deed dated 17.02.1972 said to be executed in his favour by his mother Muthulakshmi and accordingly, claiming that he has title to the property in dispute and alleging that the appellant had unlawfully trespassed into the propert

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y in dispute or been attempting to interfere with his possession and enjoyment of the suit property, accordingly, preferred the abovesaid suit against the appellant for the reliefs statedabove.

5. The appellant contested the suit laid by the respondent, inter alia that in respect of the property in dispute, already the suit in O.S.No.292 of 1989 had been preferred by her and in the said suit, the appellant's title, possession and enjoyment of the suit property had been recognised and accordingly, she had been granted the decree and the same had been confirmed by the first appellate Court as well as the High Court and hence, it is contended that the present suit laid by the respondent is barred by resjudicata and further, the appellant had acquired title to the property in dispute on the strength of the sale deed dated 07.03.1985 and contended that, on the basis of the same, she is in the possession and enjoyment of the property in dispute and hence, the suit laid by the respondent is liable to be dismissed.

6. In support of the respondent's case, PW1 was examined and Exs.A1 to A9 were marked. On the side of the appellant, DW1 was examined and Exs.B1 to B6 were marked. Further, Exs.C1 & C2 were marked.

7. The trial Court, on a consideration of the materials placed on record by the respective parties and the submissions made, was pleased to dismiss the respondent's suit holding that the respondent has failed to establish his claim of title as well his possession and enjoyment of the property in dispute and further, holding that the suit laid by the respondent is barred by resjudicata, in view of the determination of the issues pending between the parties in O.S.No.292 of 1989 and accordingly, dismissed the respondent's suit.

8. The judgement and decree of the trial Court was set aside by the first appellate Court holding that the judgment and decree passed in O.S.No.292 of 1989 would not operate as resjudicata to the present suit laid by the respondent and further, holding that the respondent has title to the property in dispute, accordingly, granted the reliefs in favour of the respondent as prayed for. Impugning the same, the present second appeal has been preferred.

9. At the foremost, it has to be seen whether the respondent has title to the property in dispute as projected by him. Though in the plaint, the respondent would claim title to the property in dispute on the strength of the sale deed dated 24.04.1943 in the name of his mother Muthulakshmi and the settlement deed dated 17.02.1972 in his favour, for the reasons best known to the respondent, the said documents had not been marked in the Court. No valid reason has been projected for the same. It is thus found that the respondent has not placed the documents of title, he relies upon for claiming title to the property in dispute. On the other hand, as seen from the materials projected by the respondent, in support of his case, he has filed 9 documents and of them Exs.A1 and A2 are found to be mortgage deeds executed by Muthulakshmi in favour of others. However, it does not stand to reason as to how on the basis of the mortgage deeds, the title of the respondent's mother could be upheld. Similarly, the commissioner's report and plan filed in O.S.No.88 of 1985 has been marked as Ex.A3 and that would not in any manner be useful to sustain the claim of title of the respondent to the property in dispute. The blue print plan has been marked as Ex.A4, it is contended that the property in dispute has been depicted in the blue print plan and thereby, the respondent has title to the suit property. However, the depiction of the suit property in dispute in the blue print plan by itself would not confer any title to the property in dispute on the respondent. Thus, it is found that the abovesaid documents Exs.A1 to A4 not being the documents of title, particularly, to the property in dispute, it is seen that the trial Court has rightly rejected the abovesaid documents and held that the respondent has failed to establish his claim of title to the property in dispute as projected by him. The other documents projected by the respondent are admittedly not useful to sustain his claim of title to the property in dispute. Thus, it is seen that the respondent has failed to establish his title to the property in dispute by placing the reliable and acceptable materials with reference to the same and accordingly, the trial Court has rightly declined to grant the relief of declaration sought for by the respondent in respect of the property in dispute.

10. Insofar as the litigation between the parties is concerned, it is found that challenging the respondent's claim of title, possession and enjoyment of the property in dispute and alleging that the respondent is attempting to interfere with her possession and enjoyment of the property in dispute, the appellant had laid the suit in O.S.No.292 of 1989 against the respondent and the same is not in dispute. The copy of the judgement rendered in the abovesaid suit has been marked as Ex.B3. On a perusal of Ex.B3, it is found that though the said suit had been laid simpliciter for the relief of permanent injunction, inasmuch as the parties contested the suit relying upon the title to the property in dispute as belonging to them, it is seen that the Court had framed issues in the said suit as to whether the property in dispute belonged to the appellant and whether the property in dispute belonged to the respondent and also framed necessary issues as to whether the property in dispute is in the possession and enjoyment of the appellant or in the possession and enjoyment of the respondent. Accordingly, on the basis of the materials placed on record, the Court, in that suit, determined that the property in dispute is only in the possession and enjoyment of the appellant and not in the possession and enjoyment of the respondent and accordingly, determined the relevant issues with reference to the possession as abovestated. On the question of title projected by the respective parties, with reference to the property in dispute, the Court had held in that suit that both the appellant as well as the respondent had failed to establish their claim of title to the property in dispute as projected by them and accordingly, determined the said issues. Lastly, holding that the respondent has no title to the property in dispute and holding that it is only the appellant, who is in the possession and enjoyment of the property in dispute and further, holding that the case of the respondent that the appellant had trespassed into the property in dispute is not established, on that determination, resultantly, decreed the suit as prayed for by the appellant and thereby, granting the relief of permanent injunction sought for by the appellant in the said suit. It is thus found that in the said suit, the question of title was gone into for deciding the claim of legal possession and enjoyment of the property in dispute as put forth by the respective parties and though in the said suit, the Court had held that neither the appellant nor the respondent had established their claim of title to the property in dispute, however, holding that the appellant is in the possession and enjoyment of the property in dispute and her possession cannot be termed as by way of trespass, accordingly, granted the reliefs in favour of the appellant in that suit. Materials placed on record go to show that the challenge made by the respondent to the judgment and decree passed in O.S.No.292 of 1989 ended in dismissal and further, it is also found that the respondent had preferred second appeal No.99 / 1997 in the High Court and the High Court had also concurred with the judgments and decrees of the Courts below and resultantly, dismissed the second appeal, which could be seen from Ex.B4. Thus, it is found that though O.S.No.292 of 1989 had been laid simpliciter for the relief of permanent injunction, however, as the parties had proceeded in the said suit putting forth the various contentions as regards the claim of title to each other in respect of the property in dispute, the Court, in that suit, had also gone into the question of title for determining as to which party is in the legal possession and enjoyment of the property in dispute and accordingly, it is noted that the question of title was also gone into in detail in that suit by formulating the appropriate issues and accordingly, the same had been adjudicated in the said suit. No doubt, the question of title was not determined in favour of either parties in that suit as regards the property in dispute. As above seen, the judgment and decree passed in the said suit has become final.

11. In respect of the same subject matter i.e. the property in dispute, the present suit has come to be laid by the respondent seeking the reliefs of declaration and possession in respect of the property in dispute. Thus, it is seen that on the strength of the same pleadings (written statement) as put forth by him in O.S.No.292 of 1989, the respondent has laid the present suit, however, seeking the reliefs of declaration and possession in respect of the property in dispute. Thus, it is contended by the appellant that inasmuch as the question of title had already been determined against the respondent in O.S.No.292 of 1989, his present suit seeking the relief of declaration of title to the property in dispute again is barred by resjudicata. However, the counsel for the respondent contended that in the earlier suit i.e O.S.No.292 of 1989, the question of title was not required to be adjudicated as the said suit is only a suit laid simpliciter for permanent injunction and in such view of the matter, according to him, the respondent would not be barred by law to seek the relief of declaration of his title to the property in dispute in the present suit and hence, according to him, the present suit is not barred by resjudicata.

12. In the light of the rival contentions put forth by the respective counsel, it is found that we have to determine as to whether the question of title in the earlier suit in O.S.No.292 of 1989 was directly and substantially in issue or was collaterally or incidentally in issue and in this connection, the apex Court in the decision reported in 2003 SCC 350 has outlined the principles of law to be taken into consideration for deciding the abovesaid point in the following manner:

Civil Procedure Code, 1908 S.11 Res judicata Matters directly and substantially in issue and matters collaterally and incidentally in issue Meaning Decision on matter collaterally or incidentally in issue in previous proceedings would not ordinarily operate as res judicata in subsequent proceedings where that matter is directly and substantially in issue Test to distinguish whether a matter was directly and substantially in issue or was collaterally or incidentally in issue Words and Phrases - collateral or incidental issue

Held

The words used in Section 11 CPC are directly and substantially in issue . If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res judicata in a subsequent proceeding. Judicial decisions have however held that if a matter was only collaterally or incidentally in issue and decided in an earlier proceeding, the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly and substantially in issue. The fundamental rule is that a judgment is not conclusive if any matter came collaterally in question. A collateral or incidental issue is one that is ancillary to a direct and substantive issue; the former is an auxiliary issue and the latter the principal issue. The expression collaterally or incidentally in issue implies that there is another matter which is directly and substantially in issue. (Paras 12 to 14)

As regards the tests for distinguishing whether a matter was directly in issue or collaterally or incidentally in issue, Mulla (15th Edn., p.104) says.

A matter in respect of which relief is claimed in an earlier suit can be said to be generally a matter directly and substantially in issue but it does not mean that if the matter is one in respect of which no relief is sought it is not directly or substantially in issue. It may or may not be. It is possible that it was directly and substantially in issue and it may also be possible that it was only collaterally or incidentally in issue, depending upon the facts of the case. The question arises as to what is the test for deciding into which category a case falls? One test is that if the issue was necessary to be decided for adjudicating on the principal issue and was decided, it would have to be treated as directly and substantially in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case (Mulla, p.104). One has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue.

This summary in Mulla is a correct statement of the law. Another principle of caution referred to by Mulla (p.105) is:

It is not to be assumed that matters in respect of which issues have been framed are all of them directly and substantially in issue. Nor is there any special significance to be attached to the fact that a particular issue is the first in the list of issues. Which of the matters are directly in issue and which collaterally or incidentally, must be determined on the facts of each case. A material test to be applied is whether the court considers the adjudication of the issue material and essential for its decision. (paras 18 & 19)

13. Accordingly, it has to be seen whether the question of title was required to be necessarily adjudicated in the earlier suit considering the case projected by the respective parties for claiming to be in the possession of the property in dispute.

14. No doubt, the earlier suit between the parties in O.S.No.292 of 1989 is only a suit laid simpliciter for the relief of permanent injunction. However, as above pointed out, considering the rival contentions put forth by the respective parties claiming title, possession and enjoyment of the property in dispute in that suit, more particularly, the lie of the property in dispute being sandwiched between the properties belonging to the appellant and the respondent, the Court, in that suit, felt that the issue of title has to be gone into for primarily determining as to which party is in the legal possession and enjoyment of the property in dispute and accordingly, it is found that both the parties had also invited the Court to render a finding on the question of title as put forth by them for claiming title to the property in dispute and accordingly, it is noted that the issues framed originally had been recast, and the issues of title were also framed by the Court in that suit and as abovenoted, the Court had, however, finally held that both the parties had failed to establish their claim of title to the property in dispute as put forth by them. However, the Court, in that suit, determining that the appellant is in the possession and enjoyment of the property in dispute and the appellant's possession and enjoyment of the property in dispute is not by way of trespass and accordingly, holding that the respondent is not entitled to interfere with her possession and enjoyment of the property in dispute, granted the relief of permanent injunction in favour of the appellant in that suit. In such view of the matter, when the parties had invited the Court to render a decision on the question of title in respect of the property in dispute in O.S.No. 292 of 1989 by putting forth rival contentions as regards the question of title to the property in dispute as put forth by them and when the claim of possession and enjoyment of the property in dispute had been projected in that suit by the respective parties on the strength of their alleged title, accordingly, when it is found that the Court, in that suit, had been necessitated to determine the question of title also, as rightly put forth by the appellant's Counsel, the question of title had been gone into in detail in the abovesaid suit and in such view of the matter, it is found that the determination of the title of the property in dispute in that suit would definitely operate as resjudicata to the present suit laid by the respondent. The question of title was directly and substantially in issue between the parties in O.S.No.292 of 1989 and in such view of the matter, when the said issue had been determined against the respondent in the said suit, which had been confirmed by the High Court in the second appeal, as above stated, the respondent cannot be allowed to again reagitate the question of title by laying the present suit by including the relief of declaration for sustaining his suit. In such view of the matter, it is found that the trial Court had correctly assessed the abovesaid point in detail by giving cogent and convincing reasons and rightly held that the present suit laid by the respondent is barred by resjudicata. In this connection, the appellant's counsel placed reliance upon the decision reported in AIR 1994 Supreme Court 152 (Sulochana Amma Vs. Narayanan Nair). The principles of law outlined in the abovesaid decision are taken into consideration and followed as applicable to the case at hand.

15. Even otherwise, when the respondent has come forward with the present suit seeking the relief of declaration on a particular set of facts and when the same had been denied tooth and nail by the appellant, it is for the respondent to establish his claim of title to the property in dispute by placing acceptable and reliable materials. As above stated, other than Exs.A1 to A4, the respondent has not placed any title documents in his favour for claiming title to the property in dispute, and when Exs.A1 to A4 cannot be construed as title documents, it does not stand to reason as to how the appellate Court had accepted the claim of title of the respondent to the property in dispute on the strength of the abovesaid documents. It is thus found that even in the present case, the respondent has failed to establish his claim of title to the property in dispute and in such view of the matter, on merits also, it has to be held that the respondent has miserably failed to establish his claim of title to the property in dispute and in that view of the matter, it is found that the relief of declaration sought for by the respondent cannot be granted.

16. The property in dispute is admittedly found to be in the possession and enjoyment of the appellant. The appellant's possession and enjoyment of the property in dispute has not been shown to be unlawful as such. Particularly, when the respondent has no valid title to the property in dispute, he is not competent to question the appellant's possession and enjoyment of the property in dispute and equally, not entitled to disturb her possession and enjoyment of the property in dispute as determined in the earlier litigation in O.S.No.292 of 1989.

17. No doubt, in the present case also, the appellant has projected the same claim of title to the property in dispute. However, the materials placed on the record do not go to establish her claim of title as projected by her. As above stated, in the earlier suit in O.S.No.292 of 1989 also, the Court had held that the appellant had failed to establish her claim of title to the suit property as projected by her.

18. The fact, however, remains that the property in dispute is in the possession and enjoyment of the appellant and in such view of the matter, the appellant's possession and enjoyment of the suit property cannot be interfered with by the respondent, particularly, when it is seen that the respondent has no title to the suit property in respect of the same. It is thus found that the appellant would be entitled to maintain her possession and enjoyment of the property in dispute and the same cannot be interfered with except by a person having a better title and that too only as per due process of law.

19. In the light of the above discussions, the present suit is barred by resjudicata in the light of the judgment and decree passed in O.S.No.292 of 1989 and further, it is thus found that the respondent has failed to establish his claim of title to the property in dispute as projected by him and accordingly, the respondent cannot be allowed to seek the reliefs sought for in the present suit and in such view of the matter, the judgment and decree of the first appellate Court granting the reliefs in favour of the respondent as prayed for are liable to be set aside. The substantial questions of law formulated in the second appeal are accordingly answered against the respondent and in favour of the appellant.

In conclusion, the Judgement and Decree dated 12.08.2004 passed in A.S.No.38 of 2003 on the file of the Subordinate Court, Tiruvarur are set aside and the Judgment and Decree dated 11.02.2003 passed in O.S.No.76 of 1996 on the file of the District Munsif-cum-Judicial Magistrate Court, Nannilam, are confirmed. Accoridngly, the second appeal is allowed with costs. Consequently, connected miscellaneous petition, if any, is closed.
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