Nagasamy vs Thangammal
2021 Latest Caselaw 20981 Mad

                                                                                  S.A.(MD)No.144 of 2005


                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                   DATED : 21.10.2021

                                                         CORAM

                            THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                                  S.A.(MD)No.144 of 2005

                Nagasamy                                               ... Appellant


                                                           Vs.

                1.Thangammal
                2.Ramamoorthy                                           ... Respondents



                Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
                against the judgment and decree passed in A.S.No.56 of 2003 dated 01.12.2003
                on the file of the Principal District Court, Ramanathapuram, confirming the
                judgment and decree of the Principal District Munsif Court, Ramanathapuram
                in O.S.No.135 of 2000 dated 17.09.2002.

                                  For Appellant      : Mr.G.Sridharan
                                                          For Mr.T.M.Hariharan

                                  For Respondents : Mr.S.Subbiah, Senior Counsel,
                                                        For Mrs.P.Jessi Jeeva Priya

                                                       No appearance for R2




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                                                                                 S.A.(MD)No.144 of 2005


                                                   JUDGEMENT

The first defendant in O.S.No.135 of 2000 on the file of the Principal

District Munsif Court, Ramanathapuram is the appellant in this second appeal.

The first respondent herein namely, Thangammal filed the said suit seeking the

relief of declaration that the suit property belongs to her and for consequential

recovery of possession by directing the appellant herein to handover the same.

The suit property is comprised in S.Nos.187/1 and 187/2 in Mykundu Village in

Ramanathapuram Taluk and measures an extent of 20 cents. The appellant

herein filed written statement controverting the plaint averments. Based on the

same, the trial Court framed the following issues:-

1)Whether the plaintiff is entitled for a relief of declaration and consequential recovery of possession as prayed for?

2)Whether the plaintiff is entitled for a relief of permanent injunction as prayed for?

3)Whether the suit is hit by res-judicata as alleged by the defendant in his written statement?

4)Whether the suit is maintainable as alleged by the defendant in his written statement?

5)To what relief?”

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2.The plaintiff's husband/Krishnan Nadar examined himself as P.W.1 and

Exs.A1 to A23 were marked. The appellant/Nagasamy examined himself as

D.W.1 and Exs.B1 to B9 were marked.

3.After a consideration of the evidence on record, the trial Court by

judgment and decree dated 17.09.2002 decreed the suit as prayed for.

Aggrieved by the same, the appellant herein filed A.S.No.56 of 2003 before the

Principal District Court, Ramanathapuram. By the impugned judgment and

decree dated 01.12.2003, the first appellate Court dismissed the appeal and

confirmed the decision of the trial Court. 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 Courts below are right in law in holding that the suit is not barred by Res-judicata?

2.Is not the suit is barred under Order 23 Rule 1 C.P.C., as the plaintiff had not sought the permission of the Court to file the instant suit? and

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S.A.(MD)No.144 of 2005

3.Whether the decree of the trial Court is sustainable in law when admittedly no issue has been framed to decide the plea of adverse possession and has not the lower appellate Court committed a grave error in confirming the decree of the trial Court?”

5.The learned counsel appearing for the appellant submitted that it is not

the first time that the appellant is being vexed with legal proceedings. One

Irulayee, D/o.Petchiammal, the predecessor-in-interest of the present plaintiff

filed O.S.No.60 of 1971 on the file of the District Munsif Court,

Ramanathapuram for redemption of mortgage. In the said suit, the appellant as

well as his father were shown as defendants 11 and 12. However, they were

exonerated during the middle of the proceedings. The said suit came to be

decreed and was confirmed in second appeal also. Irulayee also claimed that

she had taken possession. However, the learned counsel for the appellant

would contend that since he and his father were exonerated by the plaintiff

herself, the delivery said to have been taken by Irulayee will not bind him.

Thereafter, Irulayee filed O.S.No.239 of 1974 on the file of the District Munsif

Court, Ramanathapuram, seeking the relief of partition. In the said suit, neither

the appellant nor his father were shown as defendants. During the pendency of

the said partition suit, Irulayee passed away and Thangammal, the present https://www.mhc.tn.gov.in/judis

S.A.(MD)No.144 of 2005

plaintiff was impleaded as the second plaintiff. On 08.09.1986, final decree

came to be passed. The stand of the present plaintiff is that in terms of the final

decree, the suit property was allotted to her. Armed with the said final decree,

the present plaintiff filed O.S.No.213 of 1989 on the file of District Munsif

Court, Ramanathapuram, against the appellant herein seeking the reliefs of

declaration of title, recovery of possession and also permanent injunction. The

said suit came to be withdrawn on 16.12.1992. The pointed contention of the

learned counsel for the appellant is that the present plaintiff while withdrawing

the said suit did not obtain any leave for instituting a fresh suit on the same

cause of action. Referring to the plaint averments that the appellant was

impleaded as the 28th respondent in the final decree proceedings in O.S.No.239

of 1974 and that delivery was also taken, the learned counsel for the appellant

would submit that those proceedings had taken place behind the appellant's

back and that they would not bind him. The pointed contention of the learned

counsel for the appellant is that the present suit is clearly barred under Order

23 Rule 1 of CPC. He called upon this Court to answer the substantial

questions of law in favour of the appellant and set aside the impugned

judgments and decree and dismiss the suit.

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S.A.(MD)No.144 of 2005

6.Per contra, the learned senior counsel appearing for the plaintiff/first

respondent submitted that the impugned judgment and decree do not warrant

any interference. The learned senior counsel took me through pleadings of the

appellant and also the earlier round of litigation. He would point out that the

suit property is compromised only in S.Nos.187/1 and 187/2. The case of the

appellant all along has been that he is entitled to the property comprised in

S.Nos.188/2 and 188/3. Even the title documents produced by the appellant in

Exs.B7 to B9 pertain only to S.Nos.188/2 and 188/3 and not to the suit

property, which is comprised in S.Nos.187/1 and 187/2. Since the appellant on

his showing has been shown to be not having any title over the suit property,

his case can only rest on adverse possession. To succeed on the plea of adverse

possession, the appellant must have demonstrated that he was consciously

holding the land adverse to the title of the true owner. Inasmuch as, the

appellant's impression was that he was holding on the land comprised in

S.Nos.188/2 and 188/3 and since it has been shown that the suit property is

comprised in S.Nos.187/1 and 187/2, the plea of adverse possession also cannot

hold good. In this regard, the learned senior counsel placed reliance on the

decision reported in 2021-1-L.W. 804 (Nallapa Gounder & Others V.

Pazhanimuthu & Others). He also would point out that this Court has

followed the said decision while disposing of S.A.(MD)No.827 of 2001 dated

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09.06.2021. Coming to the primary contention urged by the learned counsel for

the appellant that the present suit is barred under Order 23 Rule 1 of CPC, the

learned senior counsel submitted that this contention is misplaced and has

failed to take note of plaint averments. Though the present plaintiff had earlier

filed O.S.No.213 of 1989 for the very same relief that is now being sought and

the said suit was dismissed as withdrawn without granting any liberty, he

pointed out that the present suit is based on a distinct cause of action. The suit

in O.S.No.213 of 1989 was dismissed as withdrawn on 16.12.1992. The

learned senior counsel called upon this Court to take into account the

endorsement of withdrawal. The present plaintiff withdrew the said suit since

the present appellant had been added as party in a connected suit. The learned

senior counsel submitted that the suit property was also one of the subject

matters of O.S.No.239 of 1974 and I.A.No.1001 of 1992 was filed for

impleading the appellant herein. The said application was allowed and the

appellant was made as the 28th respondent in the final decree proceedings. The

final decree eventually came to be passed and to execute the same, the present

plaintiff also filed E.P.No.93 of 1996. Delivery was taken by the present

plaintiff on 17.10.1997. Even though the executing Court had removed the

obstruction caused by the appellant herein and handed over the possession to

the present plaintiff, taking advantage of the present plaintiff's absence, the

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S.A.(MD)No.144 of 2005

appellant once again trespassed into the suit property on 14.04.1999 and

committed encroachment. According to the learned senior counsel, this would

constitute a fresh cause of action for maintaining the present suit. In this

regard, he placed reliance on the decision of the Hon'ble Supreme Court

reported in 1970 (1) SCC 761 (Vallabh Das Vs. Dr.Modan Lal and Others).

Paragraph No.5 of the said decision reads as under:-

“5.Rule 1, Order 23, Code of Civil Procedure empowers the courts to permit a plaintiff to withdraw from the suit brought by him with liberty to institute a fresh suit in respect of the subject-matter of that suit on such terms as it thinks fit. The terms imposed on the plaintiff in the previous suit was that before bringing a fresh suit on the same cause of action, he must pay the costs of the defendants. Therefore we have to see whether that condition governs the institution of the present suit. For deciding that question we have to see whether the suit from which this appeal arises is in respect of the same subject-matter that was in litigation in the, previous suit. The expression "subject-matter" is not defined in the Civil Procedure Code. It does not mean property. That expression has a reference to a right in the property which the plaintiff seeks to enforce. That expression includes the cause of action and the relief claimed. Unless the cause of action and the relief claimed in the second suit are the same as in the first suit, it cannot be said that the subject-matter of the second suit is the same as that in the previous suit.

Now coming to the case before us in the first suit Dr. Madan Lal was seeking to enforce his right to partition and separate possession. In the present suit he seeks to get possession of the suit properties from a

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S.A.(MD)No.144 of 2005

trespasser on the basis of his title. In the first suit the cause of action was the division of status between Dr. Madan Lal and his adoptive father and the relief claimed was the conversion of joint possession into separate possession. In the present suit the plaintiff is seeking possession of the suit properties from a trespasser. In the first case his cause of action arose on the day he got separated from his family. In the present suit the cause of action, namely, the series of transactions which formed the basis of his title to the suit properties, arose on the death of his adoptive father 'and mother. It is true that both in the previous suit as well as in the present suit the factum and validity of adoption of Dr. Madan Lal came up for decision. But that adoption was not the cause of action in the first nor is it the cause of action in the present suit. It was merely an antecedent even which conferred certain rights on him. Mere identity of some of the issues in the two suits does not bring about an identity of the subject matter in the two suits. As observed in Rakhma Bai v. Mahadeo Narayan(1), the expression "subject matter" in Order 23, Rule 1, Code of Civil Procedure means the series of acts or transactions alleged to exist giving rise to the relief claimed. In other words "subject matter" means the bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him. We accept as correct the observations of Wallis C.J. in Singa Reddi v. Subba Reddi(2), that where the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respect of the same subject matter as the first suit.”

7.He pointed out that the first appellate Court has merely applied the

aforesaid ratio to the facts on hand. The cause of action and the relief claimed https://www.mhc.tn.gov.in/judis

S.A.(MD)No.144 of 2005

in the present suit are not the same cause of action and the relief claimed in

O.S.No.213 of 1989. He submitted that when the Courts below have

concurrently found in favour of the plaintiff, no case has been made for

interference in exercise of jurisdiction under Section 100 of CPC. He called for

dismissal of the second appeal.

8.I carefully considered the rival contentions and went through the

evidence on record.

9.The case of the plaintiff is that the suit property originally belonged to

one Subbiah Nadar. He had mortgaged the property by way of othi. Later he

sold the property to his daughter/Petchiammal subject to the mortgage.

Petchiammal's daughter Irulayee filed O.S.No.60 of 1971 on the file of the

District Munsif Court, Ramanathapuram, for redeeming the mortgage. The

redemption suit was decreed. The redemption decree was also confirmed by

the Madras High Court in S.A.No.196 of 1974. Pursuant to the said decree,

Irulayee, the grandmother of the present plaintiff, claimed to have taken

possession of the suit property. Ex.A6 is the delivery receipt marked in the

present proceedings. It must be noted that the appellant as well as his father

were made as parties to the said redemption suit. But later they were given up

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S.A.(MD)No.144 of 2005

and exonerated. Therefore, the delivery taken by Irulayee under Ex.A6 will

obviously not bind the appellant herein.

10.Irulayee, the plaintiff's grandmother, subsequently filed a partition

suit in O.S.No.239 of 1974, on the file of the District Munsif Court,

Ramanathapuram, on the ground that she is possessed of an undivided share in

the property delivered to her, pursuant to the redemption decree. During the

pendency of the suit, Irulayee passed away and the present plaintiff was

impleased as a legal heir for prosecuting the suit. The present plaintiff's brother

namely, Gandhi was impleaded as 15th defendant in O.S.No.239 of 1975. Final

decree came to be passed on 08.09.1986. However, the said final decree was

put to challenge in A.S.No.136 of 1987 on the file of the Additional District

Court, Ramanathapuram and matter came to remanded. In the meanwhile, the

present plaintiff/Thangammal filed O.S.No.213 of 1989 on the file of the

District Munsif Court, Ramanathapuram, against the appellant herein for the

relief of declaration of title, recovery of possession as well as permanent

injunction with respect to the suit property. Before the said suit taken up for

trial, the plaintiff withdrew the said suit on 16.12.1992 on the ground that the

appellant had been added as a party in a connected suit. O.S.No.213 of 1989

thus came to be dismissed without granting any leave in favour of the plaintiff.

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There is no dispute that the appellant herein was added as the 28th respondent in

the final decree proceedings. The Court records also indicate that the suit

property was delivered to the present plaintiff in execution proceedings. In the

light of the judgment of the Hon'ble Supreme Court in the decision reported in

1970 (1) SCC 761 (Vallabh Das Vs. Dr.Modan Lal and Others), the present

suit will not be barred under Order 23 Rule 1 of CPC, if it can be demonstrated

that the appellant was put on notice before delivery was effected in favour of

the plaintiff in the previous suit and the cause of action as set out in the present

plaint actually arose.

11.A careful perusal of the Court records does not indicate that the

appellant/Nagasamy was duly served or that the final decree proceedings as

well as the execution proceedings took place by duly putting him on notice.

When the matter was taken up for final hearing, the learned senior counsel

passed on a certified copy of the proceedings dated 17.08.1992 in I.A.No.1001

of 1992 in O.S.No.239 of 1974 and contended that since the appellant as the

28th respondent in the final decree proceedings in O.S.No.239 of 1974 had

already entered appearance through counsel, there was no need to effect service

on him. The learned counsel for the appellant called upon this Court to take

into account Ex.A8, which was marked by the plaintiff. Ex.A8 is the “B” diary

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S.A.(MD)No.144 of 2005

extract of O.S.No.239 of 1974. It can be seen therefrom that the final decree

was passed on 08.09.1986. On 09.03.1992, following remand, the suit was

transferred to the file of Additional District Munsif Court, Ramanathapuram.

The matter was taken up on 25.03.1992 and adjourned to 17.06.1992. It reads

that on 10.08.1992, I.A.No.1001 of 1992 was allowed and steps were to be

taken by the plaintiff for amending the plaint. As I already pointed out I.A.No.

1001 of 1992 was filed by the present plaintiff in the previous partition suit

proceedings for impleading the appellant as 28th defendant/respondent. On

17.08.1992, steps were taken to amend the plaint and the matter was adjourned

to 20.08.1992. On the said date, steps petition was filed. The matter was

adjourned from time to time and on 20.10.1992, the steps petition was also

allowed and amendment was also carried out and the case was adjourned to

23.10.1992. On 10.02.1993, the diary extract reads that the 28 th defendant was

called absent and set as ex-parte. As I have already pointed out that Ex.A8 is

the “B” diary extract filed by the plaintiff herself. From the extract of the

proceedings, I am not able to note that the present appellant was duly served.

Therefore, the outcome of O.S.No.239 of 1974 on the file of the District Munsif

Court, Ramanathapuram, will not bind the appellant in any manner. The

present plaintiff could have succeeded only, if she had shown that she obtained

a binding decree against the appellant in O.S.No.239 of 1974. As I have

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S.A.(MD)No.144 of 2005

already pointed out, the said suit was a partition suit that took place among the

family members of the plaintiff. The present appellant was not at all a

necessary party to a partition suit. The present plaintiff was fully aware that the

appellant and his father were in possession of the suit property atleast from the

year 1971. That is why, the plaintiff/Irulayee arrayed the appellant as well as

his father as defendants in the redemption suit. For reasons that are undear,

Irulayee chose to give up and exonerate the appellant and his father. A mere

perusal of the present plaintiff's plaint in O.S.No.213 of 1989 would show that

her specific case was that the suit property was allotted in her favour in the

final decree proceedings and that thereafter, the appellant had trespassed into

the suit property. However, she chose to withdraw the said suit without

obtaining any formal leave or liberty. The Courts below have failed to note the

outcome of O.S.No.239 of 1974 will not bind the present appellant in any

manner. Because the proceedings had taken place entirely behind his back.

That is why, the Courts below erroneously held that the present suit is barred

under Order 23 Rule 1 of CPC. Since I have already found that the appellant is

not bound by the outcome of the previous partition suit proceedings in

O.S.No.239 of 1974, the second substantial question of law is answered in

favour of the appellant. There is no need to to into the other substantial

questions of law. The impugned judgments and decree are set aside

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and the second appeal is allowed in favour of the appellant alone. It is

necessary to mention that the second defendant did not file any appeal

challenging the decree passed by the trial Court and he remained ex-parte

throughout. The decree passed as against the second defendant will hold good

and can be enforced against him. No costs.

                                                                                21.10.2021
                Index             : Yes / No
                Internet          : Yes/ No
                ias

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 Principal District Court, Ramanathapuram.

2.The Principal District Munsif Court, Ramanathapuram.

Copy to:

The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.

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S.A.(MD)No.144 of 2005

G.R.SWAMINATHAN, J.

ias

S.A.(MD)No.144 of 2005

21.10.2021

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