Madras High Court
Muniyandi Servai (Died) vs Rajangam Servai (Died) on 15 July, 2021
S.A.No.1320 of 1995
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 15.07.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.No.1320 of 1995
1.Muniyandi Servai (Died)
2.Arumugam Servai (Died) ... Defendants 2 & 3 / Respondents 2 & 3/
Appellants
3.A.Chittammal
4.A.Mariammal
5.Kamalam
6.A.Dharmalingam
7.A.Nagarajan
8.Rajam
9.Yogamani
10.A.Sornamani
11.Manimegalai
12.A.Baskaran
13.Madhuram
14.Jaya
15.A.Mariappan
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S.A.No.1320 of 1995
16.A.Kannan
17.A.Chokkalingam
18.A.Thirunathan
19.A.Chandra
(Appellants 3 to 19 are brought on record as LRs
of the deceased 2nd Appellant vide Court order
28.07.2017) ... Appellants 3 to 19 /
LRs. of the deceased 3rd defendant
20.Kannusamy
21.D.Pappa
22.D.Ravi
23.D.Murugan
24.M.Muthuraman
25.M.Muthalagu
26.M.Asaithambi
27.M.Udhayakumar
28.M.Bharathi
29.N.Alagimeenal
30.C.Rajeshwari
31.M.Pattappan
32.M.Jayaraman
33.K.Pathmini
34.M.V.Sangumani
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S.A.No.1320 of 1995
35.V.Ponnalagu
36.K.Rukkumani
37.M.Sekar
38.M.Sangumani
39.K.Malarkodi
(This Court suo motu implead the appellants
20 to 39 as LRs. of the first appellant vide order
dated 14.07.2021) ... Appellants 20 to 39 /
LRs. of the deceased 2nd defendant
-Vs-
1.Rajangam Servai (Died)
2.K.Palani (Died) ... Plaintiffs / Appellants / Respondents 1 & 2
3.State of Tamil Nadu
Rep. by Ramanathapuram District,
Collector now by
Pasumpon Muthuramalinga Thevar
District Collector at Sivagangai. ... 1st Defendant / 1st Respondent / 3rd
Respondent
4.Muniammal
5.Shanmugam @ Shanmugasundaram
6.Rajasekaran ... Respondents 4 to 6 /
LRs. of the deceased 2nd plaintiff
(Respondents 4 to 6 are brought on record as LRs. of
the deceased R2 vide Court order dated 28.07.2017)
7.R.Chandrasekaran
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S.A.No.1320 of 1995
8.R.Tamilarasi
9.R.Malar
10.R.Devaki
(Respondents 7 to 10 are brought on record
as Lrs of the deceased first respondent vide order
dated 28.07.2017) ... Respondents 7 to 10 /
LRs. of the deceased 1st plaintiff
PRAYER: Second Appeal filed under Section 100 of the Civil
Procedure Code, against the judgment and decree of the District Judge,
Pasumpon Muthuramalinga Thevar District at Sivagangai in A.S.No.107 of
1992 dated 05.03.1993 reversing the judgment and decree of the District
Munsif, Sivagangai, in O.S.No.257 of 1985 dated 16.02.1990.
For Appellants : Mr.A.Sivaji
For R-3 : Mr.R.Ragavendran,
Government Advocate.
For R-7 to R-10 : Mr.AL.Vijay Devraj
For R-4 to R-6 : No appearance
JUDGMENT
The contesting defendants in O.S.No.257 of 1985 on the file of the
District Munsif Court, Sivagangai filed this second appeal. During the
pendency of the second appeal, the original appellants namely Muniyandi
Servai and Arumugam Servai passed away and their legal representatives
have come on record.
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S.A.No.1320 of 1995
2. The suit was filed by one Rajangam Servai and Palani in their
representative capacity on behalf of the villagers of Sithalur in Sivagangai
District for directing the Government to make changes in the revenue
records in consonance with the declaration that the suit property is a
communal grazing land belonging to the Sithalur villagers and for
restraining the defendants from interfering with their enjoyment of the suit
land.
3. The Government which was shown as the first defendant as well as
the contesting defendants 2 and 3 filed independent written statements
controverting the plaint averments. Issues were framed. The first plaintiff
examined himself as P.W.1 and one Karuppiah was examined as P.W.2.
Ex.A1 to Ex.A13 were marked. The second defendant examined himself as
D.W.2. Three witnesses were examined on the side of the defendants.
Ex.B1 to Ex.B26 were marked. An advocate commissioner was appointed
and he submitted his report, sketch and plan. They were marked as Court
Exhibits 1 to 4. After consideration of the evidence on record, the trial
Court vide judgment and decree dated 16.02.1990 dismissed the suit.
Questioning the same, the plaintiffs filed A.S.No.107 of 1992 before the
District Court, Sivagangai. By judgment and decree dated 05.03.1993, the
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S.A.No.1320 of 1995
first appellate Court set aside the judgment and decree passed by the trial
Court and allowed the appeal and decreed the suit as prayed for.
Questioning the same, this second appeal came to be filed.
4. The second appeal was admitted on the following substantial
questions of law:-
“1. Whether the lower appellate Court was correct in reversing
the judgment and decree of the trial Court by applying the principle of
res judicata, though in O.S.No.20 of 1924 and O.S.No.51 of 1958, the
subject matter was only survey number 59 and the Government was
not a party to those proceedings?
2. Whether the first appellate Court was correct in reversing the
judgment and decree of the trial Court, when no declaratory decree
was granted in favour of the villagers of Sithalur in the earlier
proceedings?”
5. The learned counsel appearing for the appellants admitted that the
father of the original appellants namely Ponnalagu Servai and his brother
Duraichami Servai filed O.S.No.20 of 1924 before the District Munsif
Court, Sivagangai seeking the relief of declaration in respect of the items 1
and 3 and recovery of possession in respect of the items 2 and 4. There is
no dispute that items 2 and 4 were parts of items 1 and 3. The said suit was
dismissed on 11.09.1924 and it was also confirmed in appeal. It is equally
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S.A.No.1320 of 1995
true that some 30 years later, the original appellants herein along with their
father Ponnalagu Servai filed O.S.No.51 of 1958 on the file of District
Munsif Court, Sivagangai, again seeking the very same relief of declaration
and possession. The said suit came to be decreed. But the Sub Court,
Sivagangai allowed A.S.No.65 of 1959 filed by the representatives of the
ryots of Sithalur Village. This judgment and decree passed by the first
appellate Court was questioned by Ponnalagu Servai and the original
appellants herein before the High Court by filing S.A.No.1077 of 1961. By
judgment and decree dated 25.11.963, the second appeal was dismissed and
the judgment and the decree passed by the first appellate Court was
confirmed.
6. The present suit filed by the contesting respondents herein came to
be decreed by holding that the issue on hand had already been decided in
the aforesaid proceedings and that therefore, the principle of res judicata
will operate against the appellants herein. The learned counsel appearing
for the appellants contended that this approach is patently incorrect. He
pointed out that in the earlier suit proceedings, the Government was not a
party. Merely because the suits initiated by Ponnalagu Servai suffered
dismissal, that by itself cannot enure in favour of the present plaintiffs. He
also pointed out that in O.S.No.51 of 1958, the suit property pertained only
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S.A.No.1320 of 1995
to Survey No.59. In the case on hand, the suit property pertains not only to
Survey No.59 but also to Survey No.60. He also drew my attention to the
written statement filed by the Government in the present suit proceedings.
For over 100 years, the revenue records have been standing only in the
name of Ponnalagu Servai and his descendants. At no point of time, the
property was ever shown as communal grazing land. He also pointed out
that P.W.1-Rajangam Servai who was in fact the village munsif of
Kovanoor Village admitted that in the revenue records, the names of the
original appellants alone are reflected. The recent communication dated
15.02.2021 sent by the Tahsildar, Sivagangai, also confirms that Survey
No.59 as well as Survey No.60 stand in the name of Muniyandi Servai and
Arumugam Servai / original appellants herein. Therefore, he submitted that
the first appellate Court erred in holding that the case was concluded by the
doctrine of res judicata and wanted me to answer the substantial question of
law in favour of the appellants and set aside the judgment and decree passed
by the first appellate Court and restore the decision of the trial Court.
7. Per contra, the learned counsel appearing for the respondents
submitted that the impugned judgment does not call for any interference.
8. I carefully considered the rival contentions and went through the
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S.A.No.1320 of 1995
evidence on record.
9. The present suit was filed in a representative capacity by the
villagers of Sithalur. The contention of the plaintiffs was that the suit
property had already been declared as a communal grazing land belonging
to the villagers of Sithalur. Their grievance was that even though such a
specific declaration had been granted in their favour, the revenue authorities
failed to effect mutation in the relevant revenue records. Since the
enjoyment of the suit land by the Sithalur Villagers was being prevented by
the contesting defendants, they wanted the Court to restrain the defendants
from doing so.
10. The question that arises for my determination is whether such a
declaration had in fact been granted in favour of the plaintiffs. The learned
counsel appearing for the respondents draws my attention to Ex.A1. Ex.A1
is the judgment of the District Munsif Court, Sivagangai, dated 11.09.1924
made in O.S.No.20 of 1924. There is no dispute that the father of the
original appellants herein namely Ponnalagu Servai and his brother
Duraichami Servai filed the said suit against the Sithalur villagers. Though
the survey numbers have not been mentioned in the suit schedule, from a
description of the suit property, one can come to the safe conclusion that the
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S.A.No.1320 of 1995
present suit property was the subject matter of O.S.No.20 of 1924 also.
From a reading of the judgment, one can notice that the dispute arose on
account of demarcation done by the survey officers. The suit filed by
Ponnalagu Servai and his brother Duraichami Servai was dismissed and it
was specifically held that the survey decision has not been proved to be
binding on the villagers of the Sithalur. Of-course, this judgment cannot
operate as res judicata against the appellants. But Ponnalagau Servai once
again filed O.S.No.51 of 1958 along with his sons namely Muniyandi
Servai and Arumugam Servai before the District Munsif Court, Sivagangai
seeking the very same relief of declaration of title and possession. The trial
Court decreed the suit. But the villagers of Sithalur filed A.S.No.65 of
1959 before the Sub Court, Sivagangai. The first appellate Court framed
four points for consideration. The fourth point for consideration was
formulated in the following terms:-
“Whether the suit land is a waste land set apart from time
immemorial for the common use of Sithalur villagers as manthai lands?”
11. While answering this point, the first appellate Court / Sub Court,
Sivagangai held that the evidence and circumstances of the case indicate
that the suit land must have been waste land set apart for the common use of
the villagers as a grazing field. In the very same paragraph, it has also been
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S.A.No.1320 of 1995
observed that there is evidence that the land has been used as common
grazing field of many villages including Sithalur Village. After so holding,
the first appellate Court also held that the plaintiff's claim was barred by res
judicata by reason of the decision in O.S.No.20 of 1924. As already
pointed out, this was put to challenge before the High Court in S.A.No.1077
of 1961. In a short judgment, the High Court dismissed the second appeal
and the judgment and decree passed by the first appellate Court in A.S.
No.65 of 1959 dated 09.12.1960 became final.
12. Now the only question that arises for my consideration is
whether this judgment rendered in A.S.No.65 of 1959 can be said to operate
as res judicata. It is true as pointed out by the learned counsel for the
appellant that the suit property pertained only to Survey No.59 in
Nainakulam Village. But in the present case, the suit schedule pertains not
only to survey No.59 but also to Survey No.60. But then, in the
commissioner's report made in O.S.No.51 of 1958, it has been clearly
stated that Survey No.60 appears to be a part of the Survey No.59 and that
both are grazing fields. It is relevant to remind oneself that in O.S.No.20 of
1924, though survey numbers were not mentioned, the suit property
mentioned therein corresponds to the present suit schedule. Though in
O.S.No.51 of 1958, Survey No.59 alone was mentioned, it was apparent
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S.A.No.1320 of 1995
that the suit property in O.S.No.20 of 1924 was against the subject matter.
The parties were same. The issue was same. Obviously, the suit schedule is
also the same. Thus, identity obtained in all respects.
13. In this view of the matter, the first appellate Court in the present
case chose to invoke the principle of res judicata and decreed the suit as
prayed for. It is true that the Government was not a party to the earlier
proceedings. But then, the proceedings were very much between the
original appellants herein and the villagers of Sithalur. Sithalur villagers
had been contesting this case in a representative capacity. Therefore, the
principle of res judicata will definitely apply as between the appellants and
the villagers of Sithalur. The approach of the first appellate Court was
correct. I do not find any ground to interfere. However, I must make it
clear that the suit property has been found to be a communal grazing land
not only of the Sithalur village but also all other villages. That would
obviously include the villages of Nainakulam and Kovanoor also.
Therefore, even while sustaining the impugned judgment and decree, I
make it clear that no particular village can claim any exclusive claim over
the suit property. The suit property belongs to all the surrounding villages
including Sithalur village as well as Nainakulam and Kovanoor Villages.
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S.A.No.1320 of 1995
14. The second appeal is dismissed with the aforesaid observation.
No costs.
15.07.2021
Internet : Yes/No
Index : Yes/No
RMI / PMU
To
1.The Sub Court, Sivagangai.
2.The District Munsif Court, Sivagangai.
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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S.A.No.1320 of 1995
G.R.SWAMINATHAN.J.,
RMI / PMU
Judgment made in
S.A.(MD)No.1320 of 1995
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S.A.No.1320 of 1995
15.07.2021
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