Madras High Court
Vajjiravelu Alais Anthony vs Jayakumar on 3 January, 2022
S.A.No.511 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE M.GOVINDARAJ
S.A.No.511 of 2017
and C.M.P.No.12325 of 2017
1. Vajjiravelu alais Anthony
2. V.Joseph
3. V.Andrews
4. V.Savarimuthu ... Appellants
Vs.
Jayakumar ... Respondent
PRAYER: The Second Appeal filed under Section 100 of the Civil Procedure
Code against the judgment and decree of the learned Subordinate Judge at
Tambaram dated 21.06.2017 in A.S.No.26 of 2012 confirming the decree and
judgment passed by the learned Additional District Munsif at Alandur in
O.S.No.570 f 2005 dated 25.11.2011.
For Appellants : M/s.A.Palaniappan
For Respondent : M/s.K.A.Ravindran
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JUDGMENT
The unsuccessful defendants are the appellants before this Court.
2. The plaintiff filed a suit in O.S.No.126 of 2004 for permanent
injunction restraining the defendants therein from interfering with his peaceful
possession in respect of 'A' Schedule property and not to alienate 'A' and 'B'
schedule properties. Thereafter, the appellants herein filed a suit in O.S.No.127
of 2004 for permanent injunction restraining the respondent herein from
interfering with their peaceful possession. In this suit, an Advocate
Commissioner was appointed and it was found that the appellants herein had
encroached the property of the respondent/plaintiff to an extent of 28 feet on the
eastern side. Thereafter, he filed another suit in O.S.No.570 of 2005 for
declaration and delivery of possession.
3. The suit filed by the respondents for declaration and delivery of
possession in O.S.No.570 of 2005 was decreed and the suit filed by the
appellants in O.S.No.127 of 2005 for permanent injunction was dismissed by
virtue of a Common Judgment dated 25.11.2011, against which, they preferred
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First Appeal in A.S.No.26 of 2012 and it was also dismissed. Challenging the
concurrent findings of the Courts below, the present Second Appeal.
4. The case of the plaintiff in O.S.No.570 of 2005 is that the property
in dispute, purchased by them, originally belonged to one Duraiswamy
measuring a larger extent of 2 Acres and 6 Cents in S.No.35/1. One
Rajalakshmi entered into a sale agreement with the said Duraiswamy and laid
out the property into housing plots in the name and style of "Prem Nagar",
which was approved by the Town Planning Authority and sold it to various
persons. The respondent/plaintiff purchased Plot No.74 and the appellants
purchased Plot No.73 and the defendants in O.S.No.126 of 2004 purchased Plot
No.75. The respondent/ plaintiff's property Plot No.74 was lying vacant in
which, the appellants and their sons made an illegal attempt to encroach upon.
He immediately filed a suit in O.S.No.1672 of 1981 and on the belief that the
defendants would not indulge in encroaching the property, which has definite
boundaries, kept quiet. Thereafter, the defendants/appellants herein filed a suit
in O.S.No.127 of 2004 for permanent injunction against the present respondent/
plaintiff. The plaintiff under the impression that his plot was encroached by
owners of Plot No.75 filed a suit in O.S.No.126 of 2004 for the relief of
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permanent injunction against them. The owners of Plot No.75 filed a suit in
O.S.No.105 of 2004 against the present appellants and respondent. At the
instance of the appellant, an Advocate Commissioner was appointed in
O.S.No.127 of 2004 to identify the property of all the parties in respect of Plot
Nos.73, 74 and 75. The report of the Advocate Commissioner disclosed that the
owners of Plot No.73, the appellants herein had encroached upon Plot No.74 of
the respondent herein to an extent of 28 feet and therefore, the respondent filed
another suit in O.S.No.570 of 2005 for declaration of title and delivery of
possession.
5. The Trial Court, after framing appropriate issues, has taken up all
the three suits in O.S.Nos.126 and 127 of 2004 and 570 of 2005 for common
trial and passed a Common Judgment by which, the appellants' suit in
O.S.No.127 of 2004 for permanent injunction was dismissed. The first
respondent's suit in O.S.No.570 of 2005 for declaration and delivery of
possession against the appellants was decreed and the suit in O.S.No.126 of
2004 against the owners of Plot No.75 was dismissed. As such, three decrees
were passed. Out of which, two decrees in O.S.No.127 of 2004 and O.S.No.570
of 2005 were adverse to the appellants herein. Insofar as the decree passed in
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O.S.No.127 of 2004 is concerned, the appellants have not preferred any appeal.
But, the appellants have preferred a First Appeal in A.S.No.26 of 2012 against
the decree passed in O.S.No.570 of 2005 dated 25.11.2011 alone. The First
Appellate Court dismissed the First Appeal and confirmed the decree passed by
the Trial Court. Aggrieved over the decree and judgment passed in A.S.No.26 of
2012, dated 22.03.2012, the present Second Appeal has been filed.
6. When the matter is taken up for final hearing, the learned counsel
appearing on either side has agreed to argue on the legal issue of res judicata.
From the materials placed before this Court, the admitted fact remains that three
suits in O.S.Nos.126 and 127 of 2004 and 570 of 2005 were disposed of by a
Common Judgment dated 25.11.2011 and three decrees were passed. Insofar as
O.S.No.127 of 2004 is concerned, it was filed by the appellants for permanent
injunction restraining the respondent herein from interfering with their peaceful
possession in respect of 'B', 'C' and 'D' schedule of the properties claiming title
through the purchase made in respect of Plot No.73. That decree which
negatived the title claimed by the appellants herein in respect of 'B' schedule
property mentioned in O.S.No.127 of 2004 was not challenged and in fact, it
had attained finality. The appellants have chosen to challenge only the decree
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passed in O.S.No.570 of 2005 filed by the respondent herein. Therefore, it has
to be analyzed when two decrees adversely affecting the rights of the appellants
herein were passed, are they liable to challenge both decrees or would it suffice
if one decree alone is challenged.
7. Therefore, when two or several decrees were passed, it is
incumbent on the party, who suffered decrees, to challenge all the decrees,
which are adverse to him, he cannot challenge only one decree and allow other
decrees to become final. If other decrees, which are adverse to him, have
attained finality, the appeal filed against only one decree would be hit by the
doctrine of res judicata. On this point, it is clear that the present Second
Appeal is hit by doctrine of res judicata. Therefore, the appellants cannot be
allowed to contend that the respondent could not claim equity as he was very
well aware of enjoyment of his property by the appellants over a decade.
Ultimately, the respondent would be entitled only to monetary compensation
and not entitled to recovery of possession.
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8. But, this Court is not inclined to accept the argument advanced by
the learned counsel for the appellants for the reason that the appellants
knowingly allowed the decree passed in their own suit to become final, which
negatives their claim of title in respect of extent encroached by them. Therefore,
they cannot escape from clutches of res judicata and contend that the
respondent is not entitled to. Yet another contention raised by the learned
counsel for the appellants is that the Court below has not considered the
objection filed by the appellants as against the Advocate Commissioner's report.
9. I have perused the records placed before this Court.
10. The Courts below concurrently observed that the appellants have
not filed any objection to the Advocate Commissioner's report. In fact, during
the cross examination, P.W.1 has admitted the report filed by the Advocate
Commissioner. It is categorically observed that in spite of opportunities given to
the appellants, they have not filed any objection to the Advocate Commissioner's
report. The appellants have not taken this as a ground in the appeal also.
Therefore, it is too late in the day to contend as if they filed objections and that
it was not considered. The fact remains that the objections were not filed, much
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less, it was not brought to the attention of the Court in time during trial or even
at the time of arguments. Mere filing of objection will not amount to admission
of the documents for consideration. It is incumbent on the parties to raise an
objection and work out the remedy by cross examining of the Advocate
Commissioner as to the errors and irregularities found in the report filed by him.
Having slept over their right, they cannot raise this issue at the stage of Second
Appeal and contend that their objection was not considered.
11. I go by the findings of Court below in respect of opportunity. The
appellants failed to raise their objection at the appropriate time. Therefore, this
argument cannot also be accepted. In such circumstances, I find that the Second
Appeal is hit by doctrine of res judicata and does not even deserve admission.
In fine, the Second Appeal stands dismissed. There shall be no order as to costs.
Consequently, connected miscellaneous petition is closed.
12. At this juncture, the learned counsel for the appellants would
submit that the appellants herein having enjoyed the property over a decade,
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can work out a settlement with the defendants by negotiations. Therefore, this
Court is inclined to give an opportunity to the appellant to buy peace through
negotiations.
For that purpose, the matter is adjourned to 10.01.2022.
03.01.2022
asi
Note: Issue order copy on 06.01.2022
To
1. The Subordinate Judge, Tambaram.
2. The Additional District Munsif, Alandur.
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M. GOVINDARAJ, J.
asi
S.A.No.511 of 2017
and C.M.P.No.12325 of 2017
03.01.2022
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