Madras High Court
Chellian(Died) vs N.Velayudhan Pillai (Died) on 4 October, 2021
1 S.A.No.2180 OF 2001
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.10.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.No.2180 of 2001 and
C.M.P.(MD)Nos.1172 of 2005 & 1940 of 2021
1. Chellian(Died)
2. B.Nesamony
3. B.Thankamony
4. B.Selvamony
5. B.Yesudason
6. B.Muthammal ... Appellants/ Appellants /
Plaintiffs
7. Ponmalar
8. C.Jeyakumar
9. Helda
10.Freeda Christopher
11.Jeyakar Raj Chellian
(Appellants 7 to 11 were brought on record as LRs. of the
deceased first appellant vide Order dated 26.02.2021
made in C.M.P.(MD)Nos.1567, 1572 and 1579 of 2021)
... Appellants
Vs.
1. N.Velayudhan Pillai (Died)
2. P.Manaas (Died)
3. Chellam
4. Rusalian
5. Sarojini
6. Reginal
7. Baskaran Panikar ... Respondents / Respondents /
Defendants
8. Lakshmi Kutti Thankachi
9. Eswaran Thambi
https://www.mhc.tn.gov.in/judis/
1/14
2 S.A.No.2180 OF 2001
10.L.Valshala Thankachi
11.Vikkaraman Thambi
12.Chandrika Thankachi
13.Lalithambika Thankachi
14.S.Hariharan Nair
15.Prabhakaran Nair
16.M.Satish
17.Mani
(Respondents 8 to 15 were brought on record as LRs. Of the
deceased 1st respondent vide Order dated 07.10.2009 made in
C.M.P.No.1790 of 2004)
(R-16 was brought on record as LR. Of the deceased 2nd respondent
vide Order dated 05.10.2015 made in M.P.(MD)No.3 of 2011)
(R-17 was impleaded vide Order dated 26.02.2021 made in C.M.P.
(MD)Nos.1938 and 1939 of 2021)
... Respondents
Prayer: Second appeal filed under Section 100 of
C.P.C., against the decree and judgment passed by the
Subordinate Judge, Padmanabhapuram, in A.S.No.122 of 1996
dated 21.08.2001 confirming the decree and judgment in
O.S.No.473 of 1984 on the file of the Additional District
Munsif, Kuzhithurai, Kanyakumari District, dated 18.09.1995.
For Appellants
7 to 11 : Ms.J.Anandhavalli
For Appellants
2 to 4 & 6 : Mr.Sadhasivan
For 5th Appellant : Mr.C.Mayil Vahana Rajendran
For R-10,R-12, R-13
& R-17 : Mr.G.Anto Prince
For R-6 : Mr.K.Muthu
For R-8,R-9&R-11 : No appearance.
***
https://www.mhc.tn.gov.in/judis/
2/14
3 S.A.No.2180 OF 2001
JUDGMENT
The plaintiffs in O.S.No.473 of 1984 on the file of the
Additional District Munsif, Kuzhithurai, are the appellants in
this second appeal.
2. During the pendency of the appeal, the first
appellant passed away and his legal heirs were brought on
record. The suit prayer is as follows:-
“ A. That a decree may be granted in
favour of the plaintiff declaring their title and
possession over 84 cents in O.S.No.1079 and
eastern half of O.S.Nos.1103, 1098 and entire
Survey No.1078/B.
B. That a permanent injunction may be
granted in favour of the plaintiffs restraining the
defendant from outing and removing any tree,
putting up any new structures or demolishing
any existing structures or disturbing the
peaceful possession of the plaintiffs over the
plaint schedule properties.
https://www.mhc.tn.gov.in/judis/
C. That a decree for partition by metes
and bounds, the first defendant's share of 25
cents in O.S.No.1079 which the plaintiffs
undertake to hand over to the defendant, may
also be granted and half of Sy. Nos.1103 and
1098 and 84 cents inclusive of the building in
O.Sy.1079 in favour of the plaintiffs.
D. That a decree may be granted in
favour of the plaintiffs to award all costs of this
suit.
E. Such other reliefs which may deem
fit and just in the nature and circumstances of
this suit may also be granted. ”
3. The first defendant strongly contested the claim of
the plaintiffs. Based on the rival pleadings, the trial Court
framed the necessary issues. The second plaintiff examined
himself as P.W.1 and one other witness was examined on their
side. Ex.A.1 to Ex.A.41 were marked. The first defendant
examined himself as D.W.1. Ex.B.1 to Ex.B.54 were marked.
After a consideration of the evidence on record, the trial Court
https://www.mhc.tn.gov.in/judis/
by judgment and decree dated 18.09.1995 dismissed the suit.
Aggrieved by the same, the plaintiffs filed A.S.No.122 of 1996
before the Sub Court, Padmanabhapuram. By judgment and
decree dated 21.08.2001, the first appellate Court dismissed
the appeal. Challenging the same, this second appeal came to
be filed.
4. This second appeal was admitted on the following
substantial questions of law:-
“ 1. Whether the failure on the part of
the lower appellate Court and the lower Court to
advert to the oral evidence of P.W.1, P.W.2 and
D.W.1 and the Advocate Commissioner's Report
and plan on record at all has vitiated the
judgments under challenge?
2. Whether relying on by the lower
appellate Court and the lower Court the earlier
judgments obtained from the Courts by first
respondent by practicing fraud and by filing
fabricated documents for holding that the suit is
barred by res judicata has vitiated the
judgments?
https://www.mhc.tn.gov.in/judis/
3. Whether the Judgments rendered
without considering the oral and documentary
evidence adduced in the cases on the question of
adverse possession pleaded and argued and
without giving a finding have been vitiated?
4. Whether the Judgments rendered by
the Courts below without considering Ex.Nos.1
to 41 filed in the suit and 12 additional
documents filed before the trial Court and
Ex.Nos.1329, 1331, 1338 and 1354 have been
vitiated? ”
5. The learned counsel appearing for the appellants
reiterated all the contentions set out in the memorandum of
grounds. A detailed written notes of arguments was also filed
and the learned counsel took me through the same. The
learned counsel submitted that the Courts below erroneously
held that the present suit stands barred by res judicata. She
would point out that in the earlier rounds, the Courts below
were concerned only with one half of Survey No.1079
measuring about 54 ½ cents and not with the western portion.
https://www.mhc.tn.gov.in/judis/
The learned counsel also submitted that a careful reading of
the sale deed dated 04.06.1124 (M.E.) executed by one
Nallathambi in favour of the father of the plaintiffs would
show that the title as well as the possession in respect of the
western portion was clearly conferred on him. She also
contended that the contesting defendant did not produce any
document to show that he had title and possession in respect
of the western portion. The further contention is that even
though the father of the first defendant had obtained decree in
his favour for demarcation of eastern half under Ex.B.4, the
said decree was never executed. Though reliance is placed on
Ex.B.30 which was purportedly executed pursuant to the
decree in O.S.No.508 of 1951, the plaintiffs' father was not a
party thereto.
6. The core argument of the learned counsel
appearing for the appellants is that the suit property actually
belonged to Nirakkavilai Veedu and Vellankolli Veedu and this
aspect of the matter was clearly substantiated by the plaintiffs
by marking a host of documents. But the Courts below failed
to consider the same and rather went by the decisions
https://www.mhc.tn.gov.in/judis/
rendered in the earlier rounds which again pertained only to
the eastern half and not to the western half in Survey No.
1079.
7. The learned counsel appearing for the contesting
respondents submitted that the impugned judgment and
decree do not call for any interference.
8. I carefully considered the rival contentions and
went through the evidence on record.
9. There is no dispute that the plaintiffs herein claim
only under Panuvel Nadar. On the other hand, the first
defendant claims under his father Narayanan Thambi. The
total extent of the suit property measures 1 acre and 9 cents.
Though quite a few survey numbers are mentioned in the suit
schedule, the contest revolves around survey No.1079. The
question that calls for determination is whether the Courts
below were justified in non-suiting the plaintiffs by invoking
the doctrine of res judicata. The Courts below would have
been justified in doing so, if it is demonstrated that the issue
that directly arises for consideration in the present suit was
https://www.mhc.tn.gov.in/judis/
already decided in the earlier rounds. The learned counsel
appearing for the respondents would submit that not once, but
on three occasions, the present claim was considered and
found against Thiru.Panuvel Nadar. He called upon this Court
to go through the judgments rendered under Ex.B.1 to Ex.B.9.
Ex.B.1 is the judgment rendered in O.S.No.400 of 1956 dated
27.08.1960 on the file of the Principal District Munsif,
Kuzhithurai. The said suit was filed by the father of the first
defendant against the defendants. The father of the plaintiffs,
namely, Panuvel was shown as the eighth defendant. The suit
was for declaration of title over 25 cents in the eastern half of
the said survey number, namely, 1079. The said suit was
decreed. Aggrieved by the same, the plaintiffs' father filed
A.S.No.371 of 1960 before the Sub Court, Padmanabhapuram.
Vide judgment and decree dated 26.10.1961, the appeal was
dismissed. In the said judgment, the first appellate Court had
held that the father of the first defendant has title to 25 cents
and possession over the entire 54 ¼ cents. S.A.No.1214 of
1962 filed by the father of the plaintiffs was dismissed by the
High Court on 13.11.1962.
https://www.mhc.tn.gov.in/judis/
10. O.S.No.295 of 1964 was filed by the father of the
first defendant against the plaintiffs' father before the
Principal District Munsif, Kuzhithurai. The suit was for
demarcation or alternatively for partition of eastern half of the
plaint property. In paragraph No.2 of the said judgment, it is
clearly mentioned that the eastern half of Survey No.1079
measures 1 acre and 9 cents. The said suit was decreed on
05.02.1966. A.S.No.236 of 1970 filed by the plaintiffs' father
before the Sub Court, Nagercoil, was dismissed on
26.10.1971. S.A.No.534 of 1972 filed by the plaintiffs' father
before the High Court also suffered dismissal on 25.02.1974.
11. The plaintiffs' father K.Panuvel filed O.S.No.375
of 1977 before the III Additional District Munsif, Kuzhithurai,
seeking the relief of partition. The first defendant herein is
figuring as the second defendant in the said suit. It is needless
to say, the present suit property was very much the suit
schedule in the said suit also. The suit came to be dismissed
on 22.07.1978. Though the learned counsel appearing for the
appellants contended that the decree passed in favour of the
father of the first defendant in the demarcation suit was not
https://www.mhc.tn.gov.in/judis/
put to execution, it can be seen from the observations made in
paragraph No.20 of the judgment dated 22.07.1978 in O.S.
No.375 of 1977 that it was very much put to execution.
Paragraph No.20 of the said judgment reads as follows:-
“ 20. Even in execution stage, the
plaintiff made attempts to stall the proceedings.
In Ex.B.9 judgment in C.M.A.15 and 23, the Sub
Court directed that the Commissioner should be
appointed to demarcate the property and to put
up the boundary wall, within the eastern half of
the 2nd defendant. From Ex.A.30 the decree in
C.M.A.16/1978 of Sub Court, Kuzhithurai it is
seen that joint endorsement was made regarding
the formation of the ridge between the eastern
half and western half. ”
A.S.No.328 of 1978 filed by the plaintiffs' father was also
dismissed. Panuvel Nadar filed S.A.No.2212 of 1980. During
the pendency of the second appeal, Panuvel Nadar passed
away and his wife and three sons, namely, Muthammal,
Nesamony, Thankamony and Yesudasan who are plaintiffs 2 to
5 herein came on record to prosecute the second appeal. The
https://www.mhc.tn.gov.in/judis/
second appeal was dismissed on 25.09.1984. Even though the
cause projected in three successive rounds was negatived,
undeterred by the same, O.S.No.473 of 1984 came to be filed.
The documents which the learned counsel appearing for the
appellants would want me to consider, were very much
marked in the earlier rounds and also duly considered. The
Courts below were fully justified in coming to the conclusion
that the present suit is clearly barred by res judicata.
Therefore, I have no hesitation to answer the substantial
questions of law against the appellants. There is no merit in
this second appeal.
12. This second appeal is dismissed. No costs.
Consequently, connected miscellaneous petitions are closed.
04.10.2021
Index : Yes / No
Internet : Yes/ No
PMU
Note: 1. 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.
2. Web copy of this order shall be
uploaded on 08.10.2021.
https://www.mhc.tn.gov.in/judis/
To:
1. The Subordinate Judge,
Padmanabhapuram.
2. The Additional District Munsif,
Kuzhithurai, Kanyakumari District.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis/
Note : Web copy of this order
shall be uploaded on 08.10.2021
G.R.SWAMINATHAN,J.
PMU
S.A.(MD)No.2180 of 2001
https://www.mhc.tn.gov.in/judis/
04.10.2021
https://www.mhc.tn.gov.in/judis/
