Madras High Court
P.Pappammal(Died) vs M.Lakshmi on 2 July, 2021
1 S.A.NO.751 OF 1999
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.07.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.No.751 of 1999 &
CROSS OBJECTION No.85 of 2002
S.A.No.751 of 1999
1. P.Pappammal(Died)
2. V.Pitchaimuthu(Died)
3. P.Rakappan(Died)
4. P.Ganesan(Died)
5. O.Periasami ... Appellants 1 to 5/
Respondents 2 to 5/
Defendants 2 to 5
6. Mani
7. R.Kannan
8. R.Kumar
9. R.Rasu ... Appellants 6 to 9
th
(6 appellant is brought on record as LRs. of the deceased
first appellant vide Order dated 04.03.2005 in
C.M.P.(MD)No.1781 of 2005)
(6th appellant who is already on record is recorded as LRs.
of the deceased 2nd appellant vide Order dated 17.09.2019
in C.M.P.(MD)No.5699 of 2019)
(Appellants 7 to 9 are brought on record as LRs of the deceased third
appellant vide Order dated 17.09.2019 in C.M.P.(MD)Nos.5689 to 5691
of 2019)
Vs.
1. M.Lakshmi
2. P.Muthiah(Died) ... Respondents 1&2/Appellants 1&2/
Plaintiffs
3. State of Tamil Nadu
By its District Collector,
Sivagangai. ... 3rd Respondent/1st Respondent/
1st Defendant
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2 S.A.NO.751 OF 1999
4. M.Sarasu(Died)
5. M.Parasuraman
6. M.Rakappan(Died)
7. Minor R.Vijay
8. Minor R.Mahalakshmi @ Maha
(R-7 & R-8 minors are rep. By
their grandmother and guardian M.Lakshmi,R-1)
9. G.Yellammal
10.G.Umadevi
11.G.Mari
12.G.Pandiselvi
13.G.Senthil Murugan ... Respondents 4 to 13
(R-1 who is already on record and recorded as
LRs of the deceased R-4 and R-11 vide Order dated
17.09.2019 made in C.M.P.(MD)No.5695 & 5698 of 2019)
(R-1 is recorded as LRs. of the deceased 2nd respondent & R-4
to R-6 are brought on record as LRs. of the deceased R-2 vide Order
dated 13.11.2017 in C.M.P.(MD)Nos.1783 & 1784 of 2005)
(R-7 & R-8 are brought on record as LRs. of the deceased R-6
vide Order dated 17.09.2019 in C.M.P.(MD)Nos.5696 of 2019)
(R-9 to R-13 are brought on record as LRs. of the
deceased 4th appellant vide Order dated 17.09.2019
in C.M.P.(MD)Nos.5692 to 5694 of 2019)
... Respondents
Prayer: Second appeal filed under Section 100 of
C.P.C., against the Judgment and Decree dated 24.11.1998 in
A.S.No.20 of 1998 on the file of the Sub Court, Sivagangai,
partly reversing the Decree and Judgment dated 26.11.1997 in
O.S.No.201 of 1996 on the file of the District Munsif Court,
Sivagangai.
For Appellant : Mr.M.Saravanan
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3 S.A.NO.751 OF 1999
For R-1, R-5 &
R-7 & R-8 : Ms.Vijayakumari Natarajan
For R-9 to R-12 : Mr.N.C.Ashok Kumar
For R-3 : Mr.R.Raghavender,
Government Advocate.
For R-4 & R-13 : No appearance.
***
CROSS OBJECTION No.85 of 2002
1. M.Lakshmi
2. P.Muthiah ... Cross Objectors/
Respondents 1&2
Vs.
1. P.Pappammal
2. V.Pitchaimuthu
3. P.Rakappan
4. P.Ganesan
5. O.Periasamy ... Respondents/Appellants
6. Government of Tamil Nadu
By its District Collector,
Sivagangai. ... Respondent/3rd Respondent
Prayer: Cross Objection filed under Order 41 Rule 22
of C.P.C., to set aside the Judgment and Decree in A.S.No.20
of 1998 on the file of the Sub Court, Sivagangai, dated
24.11.1998 which partly confirms the Judgment and Decree in
O.S.No.201 of 1996 on the file of the Principal District Munsif
Court, Sivagangai in so far as it is against the Cross Objector
and to grant the relief of declaration.
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4 S.A.NO.751 OF 1999
For Cross Objectors : Ms.Vijayakumari Natarajan
For R-1 to R-5 : Mr.M.Saravanan
For R-6 : Mr.R.Raghavender,
Government Advocate.
***
COMMON JUDGMENT
The defendants in O.S.No.201 of 1996 on the file of
the Principal District Munsif Court, Sivagangai, are the
appellants in this second appeal.
2. The plaintiffs have also filed their Cross Objections.
3. The cross objectors, namely, Lakshmi and Muthiah
filed O.S.No.201 of 1996 seeking the relief of declaration and
permanent injunction in respect of the suit property. The case
of the plaintiffs is that the suit property comprised in Survey
No.133/8 in Kottakudi Village, Sivagangai Taluk, has been in
their possession and enjoyment since time immemorial.
According to them, the suit property is adjacent and
contiguous to the property purchased by the first plaintiff
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5 S.A.NO.751 OF 1999
Lakshmi from one Kalimuthu Konar through a registered sale
deed dated 09.11.1962(Ex.A.1). Since the suit property is a
Natham poramboke, in view of their uninterrupted and settled
possession, the plaintiffs herein have title over the same.
However, defendants 2 and 3, namely, Pappammal and
Pitchaimuthu who are residing to the south of the suit
property have been falsely claiming that the suit property is a
common pathway. The second defendant Pappammal filed
O.S.No.382 of 1981 before the District Munsif Court,
Sivagangai, seeking the relief of permanent injunction and
mandatory injunction. The said suit was dismissed. Aggrieved
by the same, the second defendant Pappammal filed A.S.
No.101 of 1992 before the District Court, Sivagangai. The
appeal was dismissed on 10.02.1993. Challenging the same,
she also filed S.A.No.712 of 1996 before this Court. After the
dismissal of A.S.No.101 of 1992, the third defendant Pitchai
Muthu initiated the second round of litigation by filing O.S.
No.214 of 1993. During the pendency of the suit proceedings,
the defendants managed to prevail upon the revenue
authorities to declare the suit property as a common lane.
Citing this development, O.S.No.214 of 1993 was withdrawn
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6 S.A.NO.751 OF 1999
by Pitchai Muthu with liberty to file a fresh suit on the same
cause of action if necessary. Based on the newly created
revenue records, the officials even demolished the
construction made by the present plaintiffs. The plaintiffs
initially filed a writ petition before the Madras High Court and
interim injunction was granted and subsequently, it was
vacated. Aggrieved by the same, W.A.No.1314 of 1993 was
filed. The Hon'ble Division Bench took the view that the
plaintiffs will have to establish their case only before the civil
Court. Therefore, the plaintiffs filed O.S.No.201 of 1996
seeking the relief of declaration and permanent injunction.
4. The Government of Tamil Nadu was made as the
first defendant and private parties were made as defendants 2
to 6.
5. The appellants herein filed their written statement
controverting the plaint averments. They maintained that the
suit property is very much a common lane and that it is the
only source of access to reach their respective houses. The
stand of the defendants is that the house of the plaintiffs is
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7 S.A.NO.751 OF 1999
abutting the Sivagangai-Kottakudi main road which is abutting
a water body. The houses of the contesting defendants are
lying to the south of the plaintiffs' property. Only through the
suit lane, they can reach the main road. They do not have any
other mode of access.
6. The learned trial Judge framed the necessary
issues. The second plaintiff Muthiah examined himself as
P.W.1 and Ex.A.1 to Ex.A.10 were marked. On the side of the
defendants, six witnesses were examined. Two of them were
also the revenue officials. Ex.B.1 to Ex.B.11 were marked.
After a consideration of the evidence on record, the learned
trial Munsif by judgment and decree dated 26.11.1997
dismissed the suit. Aggrieved by the same, the plaintiffs filed
A.S.No.20 of 1998 before the Sub Court, Sivagangai. By
judgment and decree dated 24.11.1998, the first appellate
Court even while holding that the relief of declaration cannot
be granted, gave a finding that the suit property is in the
possession of the plaintiffs. Therefore, the relief of injunction
was granted. The judgment and decree passed by the trial
Court was accordingly modified and A.S.No.20 of 1998 was
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8 S.A.NO.751 OF 1999
partly allowed. Challenging the same, the contesting
defendants filed the present second appeal.
7. The second appeal was admitted on the following
substantial questions of law:-
“ 1. Whether in law, is the lower
appellate Court right in granting a decree for
injunction after rejecting the relief of
declaration?
2. Whether in law is not the lower
appellate Court wrong in overlooking that the
classification of suit property as pathway in
the revenue records having become final, the
suit property cannot be occupied Natham.”
8. The cross objections filed by the plaintiffs is yet to
be admitted.
9. Heard the learned counsel on either side.
10. The learned counsel appearing for the appellants
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9 S.A.NO.751 OF 1999
reiterated all the contentions set out in the memorandum of
grounds and called upon this Court to answer the substantial
questions of law in favour of the appellants and allow this
appeal and set aside the judgment and decree passed by the
first appellate Court and restore the judgment and decree
passed by the trial Court.
11. Per contra the learned counsel appearing for the
respondents submitted that the first appellate Court having
rightly found that the plaintiffs are in possession of the suit
property, ought to have granted the relief of declaration also,
in view of the character of the land as Natham. The learned
counsel called upon this Court to formally admit the cross
objections and modify the judgment and decree passed by the
first appellate Court and decree the suit in toto as prayed for.
12. I carefully considered the rival contentions and
went through the evidence on record.
13. The first contention urged by the learned counsel
appearing for the plaintiffs/cross objectors is that the suit has
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10 S.A.NO.751 OF 1999
to be decreed as prayed for, since the contesting defendants
had lost in their first round of litigation instituted in O.S.
No.382 of 1981. The learned counsel drew my attention to the
relevant averments in the written statement. She pointed out
that the original stand of the defendants was that the present
suit proceedings should be put on hold in view of the
pendency of S.A.No.712 of 1996. It was the specific stand of
the contesting defendants that the suit property covered in the
present suit proceedings and the first suit proceedings are one
and the same. There is no dispute that the first suit
proceedings ended in favour of the present plaintiffs.
Therefore, it is too late for the appellants to claim that the suit
property covered in the present suit proceedings is distinct
and different from the suit property in O.S.No.382 of 1981. No
doubt, this contention of the learned counsel appearing for the
plaintiffs/cross objectors is substantially well-founded. Though
the written statement is to the effect that the suit property
covered in O.S.No.382 of 1981 and O.S.No.201 of 1996 are
one and the same, during the course of trial, the appellants
herein submitted that the suit properties are different.
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11 S.A.NO.751 OF 1999
14. Now the question is whether by invoking the
principles of res judicata, the present suit can be decreed as
such. The learned counsel appearing for the cross
objectors/plaintiffs would draw my attention to the decision
reported in 2020 (6) CTC 29 (Virgo Industries (Engineers) Pvt.
Ltd., V. Venturetech Solutions Pvt. Ltd.,). The Hon'ble Division
Bench following the earlier decision of the Hon'ble Supreme
Court reported in AIR 1960 SC 941 (Satyadhyan Ghosal and
Others V. Sm.Deorajin Debi and Another), had held that the
principles of Res judicata will apply between past litigation
and future litigation. When a matter-whether on a question of
fact or a Question of Law – has been decided between two
parties in one suit or proceeding and the decision is final,
neither party will be allowed in a future suit or proceeding
between the same parties to canvass the matter again. I posed
a specific question to the learned counsel appearing for the
appellants whether the finding rendered in O.S.No.382 of
1981 can operate as Res judicata in the present case so as to
decree the suit as prayed for. As rightly pointed out by the
learned counsel appearing for the appellants, even though the
pleading in the present written statement is not proper, still
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12 S.A.NO.751 OF 1999
the fact remains that the issue raised in the earlier suit and
the present suit are not one and the same. In the earlier suit,
the first appellant sought the relief of declaration and other
consequential reliefs. A mere look at the Commissioner's
report and plan filed in O.S.No.382 of 1981 would make it
clear that there is a pathway to the west of the suit property.
The suit property involved in O.S.No.382 of 1981 was distinct
from the pathway in question. Confusion has arisen because
the appellants herein wrongly pleaded that the suit property
in O.S.No.382 of 1981 and the present suit are one and the
same. That apart, the question of common pathway did not
arise in the earlier suit proceedings. As already pointed out,
the first appellant herein filed the earlier suit. The second
appellant/the husband of the first appellant and the
Government and other defendants herein were not parties to
O.S.No.382 of 1981. Therefore, the plea of Res judicata put
forth by the plaintiffs/cross objectors cannot be accepted. I
hold that the present proceedings will have to be decided on
its own merits and that it cannot be bound by the findings
given in O.S.No.382 of 1981.
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13 S.A.NO.751 OF 1999
15. Even though the plaintiffs would claim that the
suit property has been in their possession and enjoyment,
since time immemorial, it is obvious that they entered the
scene only in the year 1962 when the first plaintiff Lakshmi
purchased a piece of land from erstwhile owner Kalimuthu
Konar vide registered sale deed dated 09.11.1962. The
description of the property has been set out in Ex.A.11. The
property purchased by the first plaintiff has the following
dimensions:-
“East west : 45 fhyb
North south : 55 fhyb”
One “fhyb” is equal to 9 inches.
16. The plaintiffs claim title by virtue of Ex.A.1 sale
deed dated 09.11.1962. There is no doubt that the suit
property is situated on the western side of the property
purchased by the plaintiffs. The plaintiffs claim right thereon
only by virtue of possession. I have already noted that the
plaintiffs have entered the scene only after the purchase vide
Ex.A.1. The plaintiffs' claim that they were in possession and
enjoyment of the suit property since time immemorial cannot
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14 S.A.NO.751 OF 1999
be believed. Of course apart from the property purchased vide
Ex.A.1, the plaintiffs were also in possession and enjoyment of
the adjacent land. That is clear from the judgment and decree
dated 10.02.1993 made in A.S.No.101 of 1992 on the file of
the District Court, Sivagangai. But then, in the said first
appeal judgment, the measurement has not been specifically
given. In the said proceedings, the existence of the pathway to
the west of the plaintiffs' property had been mentioned. The
plaintiffs by virtue of possession of the Natham land can claim
title, only if possession can be clearly established. There is
absolutely nothing on record to show that the plaintiffs have
been in exclusive possession of the suit property. In any event,
UDR was undertaken in the late 80s and following the said
exercise, the suit property was shown as a common lane vide
Ex.B.1 and Ex.B.2. Of course such a classification in the
revenue records cannot be binding on a civil Court. That is
why, when the plaintiffs moved the High Court by filing the
writ petition, it was observed that the plaintiffs can establish
their claim in the civil Court. In this case, I find that UDR was
prepared after the District Revenue Officer had undertaken
the field inspection. While the appellants would claim that
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15 S.A.NO.751 OF 1999
except the suit lane, there is no other pathway, the learned
counsel appearing for the cross objectors would strongly
contend that this was not the case projected before the Court
below. The revenue authorities have classified the suit
property as a common lane. The local revenue officials have
been examined as witnesses on the side of the defendants.
They have categorically deposed before the Court below that
since time immemorial, the suit property had been used as a
pathway by the parties who are residing to the south of the
plaintiffs' house.
17. The plaintiffs entered the picture only in 1962.
Ever since 1981, a bitter contest is going on between the
parties. The revenue authorities after undertaking field
inspection have given a finding that the suit property is used
as a common lane. The evidence of the village officials is also
to the same effect. There is nothing on record to show that the
plaintiffs were in exclusive possession of the suit lane. The
Courts below concurrently found that the plaintiffs are not
entitled to any declaration over the suit property. Having
declined to grant the relief of declaration, the first appellate
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16 S.A.NO.751 OF 1999
Court erred in granting injunction in respect of the suit lane.
The substantial questions of law are answered in favour of the
appellants.
18. Therefore, the impugned judgment and decree
passed by the first appellate Court is set aside to the extent
the suit property has been shown as lane in Ex.B.2. After I
pronounced Judgment, the learned counsel appearing for the
appellants states that the appellants really want to buy peace
with the plaintiffs. As measure of sincere goodwill, the
appellants undertake to pay a sum of Rs.50,000/- to the
plaintiffs. Even while modifying the judgment and decree of
the first appellate Court and allowing this second appeal, the
appellants are directed to pay a sum of Rs.50,000/- to the
plaintiffs within a period of twelve weeks from the date of
receipt of a copy of this Judgment.
19. This second appeal is allowed. The cross objection
is dismissed. No costs.
02.07.2021
Index : Yes / No
Internet : Yes/ No
PMU
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17 S.A.NO.751 OF 1999
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
To:
1. The Sub Judge,
Sivagangai.
2. The District Munsif
Sivagangai.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court, Madurai.
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18 S.A.NO.751 OF 1999
G.R.SWAMINATHAN,J.
PMU
S.A.No.751 of 1999
02.07.2021
https://www.mhc.tn.gov.in/judis/
