S.A.No.511 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE M.GOVINDARAJ
S.A.No.511 of 2017
and C.M.P.No.12325 of 2017
1. Vajjiravelu alais Anthony
2. V.Joseph
3. V.Andrews
4. V.Savarimuthu ... Appellants
Vs.
Jayakumar ... Respondent
PRAYER: The Second Appeal filed under Section 100 of the Civil Procedure
Code against the judgment and decree of the learned Subordinate Judge at
Tambaram dated 21.06.2017 in A.S.No.26 of 2012 confirming the decree and
judgment passed by the learned Additional District Munsif at Alandur in
O.S.No.570 f 2005 dated 25.11.2011.
For Appellants : M/s.A.Palaniappan
For Respondent : M/s.K.A.Ravindran
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https://www.mhc.tn.gov.in/judis
S.A.No.511 of 2017
JUDGMENT
The unsuccessful defendants are the appellants before this Court.
2. The plaintiff filed a suit in O.S.No.126 of 2004 for permanent injunction restraining the defendants therein from interfering with his peaceful possession in respect of 'A' Schedule property and not to alienate 'A' and 'B' schedule properties. Thereafter, the appellants herein filed a suit in O.S.No.127 of 2004 for permanent injunction restraining the respondent herein from interfering with their peaceful possession. In this suit, an Advocate Commissioner was appointed and it was found that the appellants herein had encroached the property of the respondent/plaintiff to an extent of 28 feet on the eastern side. Thereafter, he filed another suit in O.S.No.570 of 2005 for declaration and delivery of possession.
3. The suit filed by the respondents for declaration and delivery of possession in O.S.No.570 of 2005 was decreed and the suit filed by the appellants in O.S.No.127 of 2005 for permanent injunction was dismissed by virtue of a Common Judgment dated 25.11.2011, against which, they preferred 2 of 10 https://www.mhc.tn.gov.in/judis S.A.No.511 of 2017 First Appeal in A.S.No.26 of 2012 and it was also dismissed. Challenging the concurrent findings of the Courts below, the present Second Appeal.
4. The case of the plaintiff in O.S.No.570 of 2005 is that the property in dispute, purchased by them, originally belonged to one Duraiswamy measuring a larger extent of 2 Acres and 6 Cents in S.No.35/1. One Rajalakshmi entered into a sale agreement with the said Duraiswamy and laid out the property into housing plots in the name and style of "Prem Nagar", which was approved by the Town Planning Authority and sold it to various persons. The respondent/plaintiff purchased Plot No.74 and the appellants purchased Plot No.73 and the defendants in O.S.No.126 of 2004 purchased Plot No.75. The respondent/ plaintiff's property Plot No.74 was lying vacant in which, the appellants and their sons made an illegal attempt to encroach upon. He immediately filed a suit in O.S.No.1672 of 1981 and on the belief that the defendants would not indulge in encroaching the property, which has definite boundaries, kept quiet. Thereafter, the defendants/appellants herein filed a suit in O.S.No.127 of 2004 for permanent injunction against the present respondent/ plaintiff. The plaintiff under the impression that his plot was encroached by owners of Plot No.75 filed a suit in O.S.No.126 of 2004 for the relief of 3 of 10 https://www.mhc.tn.gov.in/judis S.A.No.511 of 2017 permanent injunction against them. The owners of Plot No.75 filed a suit in O.S.No.105 of 2004 against the present appellants and respondent. At the instance of the appellant, an Advocate Commissioner was appointed in O.S.No.127 of 2004 to identify the property of all the parties in respect of Plot Nos.73, 74 and 75. The report of the Advocate Commissioner disclosed that the owners of Plot No.73, the appellants herein had encroached upon Plot No.74 of the respondent herein to an extent of 28 feet and therefore, the respondent filed another suit in O.S.No.570 of 2005 for declaration of title and delivery of possession.
5. The Trial Court, after framing appropriate issues, has taken up all the three suits in O.S.Nos.126 and 127 of 2004 and 570 of 2005 for common trial and passed a Common Judgment by which, the appellants' suit in O.S.No.127 of 2004 for permanent injunction was dismissed. The first respondent's suit in O.S.No.570 of 2005 for declaration and delivery of possession against the appellants was decreed and the suit in O.S.No.126 of 2004 against the owners of Plot No.75 was dismissed. As such, three decrees were passed. Out of which, two decrees in O.S.No.127 of 2004 and O.S.No.570 of 2005 were adverse to the appellants herein. Insofar as the decree passed in 4 of 10 https://www.mhc.tn.gov.in/judis S.A.No.511 of 2017 O.S.No.127 of 2004 is concerned, the appellants have not preferred any appeal. But, the appellants have preferred a First Appeal in A.S.No.26 of 2012 against the decree passed in O.S.No.570 of 2005 dated 25.11.2011 alone. The First Appellate Court dismissed the First Appeal and confirmed the decree passed by the Trial Court. Aggrieved over the decree and judgment passed in A.S.No.26 of 2012, dated 22.03.2012, the present Second Appeal has been filed.
6. When the matter is taken up for final hearing, the learned counsel appearing on either side has agreed to argue on the legal issue of res judicata. From the materials placed before this Court, the admitted fact remains that three suits in O.S.Nos.126 and 127 of 2004 and 570 of 2005 were disposed of by a Common Judgment dated 25.11.2011 and three decrees were passed. Insofar as O.S.No.127 of 2004 is concerned, it was filed by the appellants for permanent injunction restraining the respondent herein from interfering with their peaceful possession in respect of 'B', 'C' and 'D' schedule of the properties claiming title through the purchase made in respect of Plot No.73. That decree which negatived the title claimed by the appellants herein in respect of 'B' schedule property mentioned in O.S.No.127 of 2004 was not challenged and in fact, it had attained finality. The appellants have chosen to challenge only the decree 5 of 10 https://www.mhc.tn.gov.in/judis S.A.No.511 of 2017 passed in O.S.No.570 of 2005 filed by the respondent herein. Therefore, it has to be analyzed when two decrees adversely affecting the rights of the appellants herein were passed, are they liable to challenge both decrees or would it suffice if one decree alone is challenged.
7. Therefore, when two or several decrees were passed, it is incumbent on the party, who suffered decrees, to challenge all the decrees, which are adverse to him, he cannot challenge only one decree and allow other decrees to become final. If other decrees, which are adverse to him, have attained finality, the appeal filed against only one decree would be hit by the doctrine of res judicata. On this point, it is clear that the present Second Appeal is hit by doctrine of res judicata. Therefore, the appellants cannot be allowed to contend that the respondent could not claim equity as he was very well aware of enjoyment of his property by the appellants over a decade. Ultimately, the respondent would be entitled only to monetary compensation and not entitled to recovery of possession.
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8. But, this Court is not inclined to accept the argument advanced by the learned counsel for the appellants for the reason that the appellants knowingly allowed the decree passed in their own suit to become final, which negatives their claim of title in respect of extent encroached by them. Therefore, they cannot escape from clutches of res judicata and contend that the respondent is not entitled to. Yet another contention raised by the learned counsel for the appellants is that the Court below has not considered the objection filed by the appellants as against the Advocate Commissioner's report.
9. I have perused the records placed before this Court.
10. The Courts below concurrently observed that the appellants have not filed any objection to the Advocate Commissioner's report. In fact, during the cross examination, P.W.1 has admitted the report filed by the Advocate Commissioner. It is categorically observed that in spite of opportunities given to the appellants, they have not filed any objection to the Advocate Commissioner's report. The appellants have not taken this as a ground in the appeal also. Therefore, it is too late in the day to contend as if they filed objections and that it was not considered. The fact remains that the objections were not filed, much 7 of 10 https://www.mhc.tn.gov.in/judis S.A.No.511 of 2017 less, it was not brought to the attention of the Court in time during trial or even at the time of arguments. Mere filing of objection will not amount to admission of the documents for consideration. It is incumbent on the parties to raise an objection and work out the remedy by cross examining of the Advocate Commissioner as to the errors and irregularities found in the report filed by him. Having slept over their right, they cannot raise this issue at the stage of Second Appeal and contend that their objection was not considered.
11. I go by the findings of Court below in respect of opportunity. The appellants failed to raise their objection at the appropriate time. Therefore, this argument cannot also be accepted. In such circumstances, I find that the Second Appeal is hit by doctrine of res judicata and does not even deserve admission. In fine, the Second Appeal stands dismissed. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
12. At this juncture, the learned counsel for the appellants would submit that the appellants herein having enjoyed the property over a decade, 8 of 10 https://www.mhc.tn.gov.in/judis S.A.No.511 of 2017 can work out a settlement with the defendants by negotiations. Therefore, this Court is inclined to give an opportunity to the appellant to buy peace through negotiations.
For that purpose, the matter is adjourned to 10.01.2022.
03.01.2022 asi Note: Issue order copy on 06.01.2022 To
1. The Subordinate Judge, Tambaram.
2. The Additional District Munsif, Alandur.
9 of 10 https://www.mhc.tn.gov.in/judis S.A.No.511 of 2017 M. GOVINDARAJ, J.
asi S.A.No.511 of 2017 and C.M.P.No.12325 of 2017 03.01.2022 10 of 10 https://www.mhc.tn.gov.in/judis