Madras High Court
Ponnayyan vs D.Krishnan on 29 July, 2021
S.A.(MD)No.1179 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.07.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.1179 of 2011
and
M.P.(MD)No.1 of 2011
Ponnayyan ... Appellant / 1st Respondent / 1st Defendant
-Vs-
1.D.Krishnan
2.D.Kumaresan
3.Raghavan ... Respondents 1 to 3 / Appellants / Plaintiffs
4.Moni
5.Nadarajan
6.Saradha
7.Chellappan ... Respondents 4 to 7 / Respondents 2 to 5/
Defendants 2 to 5
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree passed in A.S.No.25 of 2009 dated
25.04.2011 on the file of the Subordinate Judge, Padmanabapuram,
reversing the judgment and decree passed in O.S.No.216 of 2004 dated
22.12.2008 on the file of the Principal District Munsif, Padmanabapuram.
For Appellant : Mr.C.Kishore
for Mr.Sreekumaran Nair
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S.A.(MD)No.1179 of 2011
For R1 : Dismissed
For R2 & R3 : Mr.R.Vijayakumar
For R4 to R7 : exparte
JUDGMENT
The first defendant in O.S.No.216 of 2004 on the file of the Principal
District Munsif, Padmanabhapuram, is the appellant in this second appeal.
The said suit was for partition. In the said suit, the plaintiffs sought the
relief of partition and also permanent injunction restraining the appellant
herein from disturbing their possession by executing the decree in O.S.No.
72 of 1997 on the file of the District Munsif Court, Padmanabhapuram.
2. The case of the plaintiff was that in O.S.No.731 of 1973 on the file
of the District Munsif Court, Padmanabhapuram, a final decree was passed
on 13.12.1973, under which, 1/3rd share in the suit property was jointly
allotted in favour of D11 and D15 therein. Another 1/3rd share was allotted
in favour of 14th defendant in the said suit. The plaintiff's 1/3rd share was
allotted in favour of D13 in the said suit. D15 in the previous suit passed
away without any children and his share devolved on D11. D11 in the
previous suit was shown as first defendant in O.S.No.216 of 2004. The
plaintiffs and the 5th defendant Chellappan are the legal heirs of D13 in the
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S.A.(MD)No.1179 of 2011
previous suit. D2 to D4 are the legal heirs of D14 in the previous suit.
According to the plaintiffs, the first defendant, plaintiffs and the 5th
defendant and D2 to D4 in the present suit will be entitled to 1/3rd share
each in the suit schedule properties. They further contended that the second
and third plaintiff however purchased six cents in the first item from their
father Dasan. The first plaintiff and the first defendant have purchased four
cents from their father. The plaintiffs prayed for partition decree after
taking into account these sale deeds also. The suit prayer was strongly
contested by the first defendant. The first defendant raised the plea of res-
judicata. Based on that rival pleadings, the trial Court framed the necessary
issues. The third plaintiff Raghavan was examined as P.W.1 and Ex.A1 to
Ex.A10 were marked. The first defendant examined himself as D.W.1 and
marked Ex.B1 to Ex.B9. After considering the evidence on either side, the
trial Court dismissed the suit by judgment and decree dated 22.12.2008.
Aggrieved by the same, the plaintiffs filed A.S.No.25 of 2009 before the
Sub Court, Padmanabhapuram. The first appellate Court by the impugned
judgment and decree dated 25.04.2011 set aside the judgment of the trial
Court and partly allowed the appeal by granting the preliminary decree for
partition alone. Aggrieved by the same, this second appeal has been filed.
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S.A.(MD)No.1179 of 2011
3. The second appeal was admitted on the following substantial
question of law:-
“ Whether the suit is barred by res-judicata”
4. Heard the learned counsel on either side.
5.The learned counsel appearing for the appellant 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 appellant
and set aside the impugned judgment and decree and restore the decision of
the trial Court.
6. Per contra, the learned counsel appearing for the plaintiffs/ R1 to
R3 contended that the impugned judgment and decree do not warrant
interference. He pointed out that the plaintiffs have purchased 10 cents of
land from their father Dasan and that the same cannot be ignored. They
would point out that when the appellant herein filed O.S.No.72 of 1997
seeking the relief of partition based on the allotment made in the final
decree dated 13.12.1973 made in O.S.No.731 of 1973, they were not made
parties. Merely because, the plaintiffs were impleaded in the capacity of
legal representatives of their deceased father, that would not in any way
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S.A.(MD)No.1179 of 2011
take away the legal rights, to which, they are otherwise entitled to.
The learned counsel would contend that their mere presence in the
execution proceedings cannot operate as res-judicata. He called upon this
Court to affirm the findings of the first appellate Court.
7. I carefully considered the rival contentions and went through the
evidence on record. There is no dispute that the suit properties were
included in the suit schedule in O.S.No.731 of 1973. A final decree was
passed on 13.12.1973 in terms of which the suit properties were jointly
allotted in favour of D11 to D15 therein. Since only a joint allocation was
made, the appellant herein filed O.S.No.72 of 1997 seeking the relief of
partition. In the said suit, Dasan / father of the plaintiffs was shown as the
second defendant. He remained exparte. A preliminary decree came to be
passed and it was not put to challenge. A final decree also came to be
passed on 02.08.2002 whereby 18.530 cents was allotted in favour of the
appellant herein. The appellant herein filed E.P.No.4 of 2003 for executing
the same. During the pendency of the execution proceedings, Dasan passed
away. The plaintiffs were brought on record as legal heirs of the deceased
Dasan in the execution proceedings. Thereafter, delivery was ordered on
05.01.2004 and it was also effected on 03.02.2004. It is relevant to note
here that D5 who is none other than the brother of the plaintiffs was shown
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S.A.(MD)No.1179 of 2011
as defendant in the main suit also ie., O.S.No.72 of 1997. What clinches the
issue in favour of the appellant is that the present plaintiffs are staking their
claim only in the capacity as sons of Dasan and not in independent capacity.
Their claim is only under final decree made in O.S.No.731 of 1973. In
other words, the present plaintiffs cannot claim any higher right than what
their father was entitled to. Dasan admittedly was a party to O.S.No.72 of
1997. The plaintiff's brother / fifth defendant herein was already a party to
O.S.No.72 of 1997. They suffered preliminary decree as well as final
decree and the same had become final. In the Execution Petition, following
the demise of their father, the present plaintiffs were impleaded as
respondents.
8. The present plaintiffs did not file any revision petition challenging
the orders made in E.P.No.4 of 2003. Those orders effecting delivery of
18.530 cents out of the suit schedule property in favour of the appellant
herein had become final. The effect of finality cannot be overcome by
instituting one more suit for partition. That was patently not maintainable.
It was clearly hit by res-judicata. Even if I hold that it is not hit by res-
judicata, there cannot be a re-litigation in respect of a concluded matter.
The present suit will be hit by prohibition against re-litigation. The trial
Court had correctly approached the issue and the first appellate Court
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S.A.(MD)No.1179 of 2011
misdirected itself by not holding that the present round of litigation is not
maintainable. The judgment and decree passed by the first appellate Court
is set aside. The substantial question of law is answered in favour of the
appellant. The decision of the trial Court is restored. The second appeal is
allowed. No costs. Consequently, connected miscellaneous petition is
closed.
29.07.2021
Internet : Yes/No
Index : Yes/No
rmi
To
1.The Subordinate Judge, Padmanabapuram.
2.The Principal District Munsif, Padmanabapuram.
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.1179 of 2011
G.R.SWAMINATHAN.J.,
rmi
Judgment made in
S.A.(MD)No.1179 of 2011
and
M.P.(MD)No.1 of 2011
29.07.2021
https://www.mhc.tn.gov.in/judis/
