Madras High Court
Arulappan vs Selvi T.Kamalammal on 1 March, 2022
1 S.A.(MD)NO.459 OF 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 01.03.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.459 of 2010
Arulappan ... Appellant / Respondent /
Defendant
Vs.
Selvi T.Kamalammal ... Respondent / Appellant /
Plaintiff
Prayer: Second appeal filed under Section 100 of
C.P.C., against the Judgment and Decree passed in A.S.No.83
of 2004 dated 15.07.2009 on the file of the II Additional
Subordinate Judge, Nagercoil Camp at Kuzhithurai reversing
the Judgment and Decree passed in O.S.No.478 of 1995 dated
18.08.2004 on the file of the II Additional District Munsif,
Kuzhithurai.
For Appellant : Mr.H.Lakshmi Shankar
For Respondent : Ms.J.Anandhavalli
***
https://www.mhc.tn.gov.in/judis
1/16
2 S.A.(MD)NO.459 OF 2010
JUDGMENT
The defendant in O.S.No.478 of 1995 on the file of the
II Additional District Munsif, Kuzhithurai, is the appellant in
this second appeal.
2. The respondent herein filed the said suit for
partition. The case of the plaintiff is that the suit property was
the subject matter of O.S.No.273 of 1975 filed by one
Abraham. In the suit, one Retnamony was shown as the third
defendant. He pleaded adverse possession in respect of 25
cents of item No.2 of the said suit schedule. Accepting the said
defence, the suit filed by Abraham was dismissed. He filed
A.S.No.168 of 1978. The appellate Court also held that by
adverse possession, Retnamony had perfected his title over
the said 25 cents. On 20.09.1988, the said Retnamony
conveyed his 25 cents which is a part of the present suit
property in favour of the plaintiff herein. The suit property
measures 1 acre and 44 cents in Old Survey No.3934 /
Resurvey No.237 / 1, 2, 5 and 6 in Arumanai Village,
Vilavancode Taluk, Kanyakumari District. The remaining
extent belongs to the appellant herein. Since the suit property
had not been partitioned, the present suit came to be
https://www.mhc.tn.gov.in/judis
3 S.A.(MD)NO.459 OF 2010
instituted to divide the property by metes and bounds and for
allotting 25 cents of land in favour of the plaintiff.
3. The appellant herein filed written statement
controverting the plaint averments. Based on the divergent
pleadings, the Trial Court framed the necessary issues. The
plaintiff Kamalammal examined herself as P.W.1 and marked
Ex.A.1 to Ex.A.20. The defendant Arulappan examined himself
as D.W.1. Yovel was examined as D.W.2. Ex.B.1 to Ex.B.31
were marked. An Advocate Commissioner was appointed and
his report and plan were marked as Court Exhibits 1 and 2.
After consideration of the evidence on record, the Trial Court
by judgment and decree dated 18.08.2004 dismissed the suit.
Challenging the same, the plaintiff filed A.S.No.83 of 2004
before the Sub Court, Kuzhithurai. By the impugned judgment
and decree dated 15.07.2009, the first appellate Court
granted preliminary decree holding that the plaintiff is
entitled to undivided 25 cents of land in the suit property.
Challenging the same, this second appeal came to be filed by
the defendant.
https://www.mhc.tn.gov.in/judis
4 S.A.(MD)NO.459 OF 2010
4. This second appeal was admitted on 27.05.2010 on
the following substantial questions of law:-
“ 1. When admittedly Retnamony had
conveyed his right, title and possession under Ex.B.
5 dated 14.06.1965 in favour of Muthupillai who in
turn sold his right under Ex.B.11 dated 07.08.1978
to the defendant, whether the alleged sale deed
Ex.A.4 dated 20.09.1988 by Retnamony in favour of
the plaintiff in respect of the same property
conveyed under Ex.B.5 is valid.
2. Whether the contention of the defendant
is barred by res judicata by virtue of some
observation in Ex.A.1 and Ex.A.2 judgments when
the vendor of the defendant was a defendant in the
previous suit and that suit was dismissed.
3. Whether the lower appellate Court is
right in ignoring Ex.B.5 and Ex.B.11 sale deeds,
Ex.B.13 patta, Ex.B.19 Adangal, Ex.B.14 to Ex.B.18
and Ex.B.28 of Ex.B.31 tax receipts, while deciding
the first appeal which is a final Court of fact.”
https://www.mhc.tn.gov.in/judis
5 S.A.(MD)NO.459 OF 2010
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 passed by the first appellate
Court and restore the decision of the Trial Court.
6. Per contra, the learned counsel appearing for the
respondent submitted that no substantial question of law
arises for consideration and called upon this Court to dismiss
the second appeal. The learned counsel appearing for the
respondent filed written statement in support of her
contentions. She relied on 1. Union of India V.
S.Narasimhulu Naidu ( LL 2021 SC 408), 2. Jagdish
Prasad Patel (Dead) through LRs and another V.
Shivnath and others ( (2019) 6 SCC 82), 3. K.R.Mohan
Reddy V. M/s.Net Work Inc Rep. Tr.M.D. ((2008) 1 MLJ
1253), 4. Prahlad Pradhan V. Sonu Kumhar ((2019 10
SCC 259) and 5. Smt.Sawarni V. Smt.Inder Kaur and
Others ((1996) 6 SCC 223).
https://www.mhc.tn.gov.in/judis
6 S.A.(MD)NO.459 OF 2010
7. I carefully considered the rival contentions and
went through the evidence on record.
8. The suit property was originally owned by one
Velayudhan Pillai and Padmanabha Pillai. On 15.12.1913, they
mortgaged the entire suit property in favour of one
Nalamudayan Gabriel (Ex.B.20 / Ex.B.21). This was assigned
by the mortgagee in favour of one Gnanapoo Vedapoo on
15.03.1920 under Ex.B.22 / Ex.B.23. The mortgagee under
Ex.B.22 / Ex.B.23 is none other than the grandmother of the
plaintiff. On 31.10.1962, Vedappoo assigned the mortgage in
favour of Muthupillai under Ex.B.1 / Ex.B.2. In the meanwhile,
Velayuthan Pillai and Padmanabha Pillai sold the suit property
measuring 1 acre and 44 cents to four brothers, namely,
Retnamony, Yesudhasan, Abraham and Palayyan who are the
sons of Gnanathambi under Ex.B.26 and Ex.B.27 on
17.01.1934. The sale was subject to the mortgage. On
24.06.1940, Gnanathambi and Retnamony Nadar (father and
son) created an othi in respect of 25 cents out of 1 acre and 44
cents in favour of one Velayudhan Kumaravelu and
Ponnammal. On 01.07.1944, assignment of the said othi was
https://www.mhc.tn.gov.in/judis
7 S.A.(MD)NO.459 OF 2010
made in the name of Chellammal, W/o.Abraham under Ex.A.13
/ Ex.A.14. Chellammal mortgaged the same in favour of one
Raman Nadar on 19.06.1947 under Ex.A.11 / Ex.A.12. Further
assignment was made in favour of Podiyan Devadhasan. The
said Devadhasan made a further assignment in favour of
Nesamony Nadar on 22.06.1953 under Ex.A.15 / Ex.A.16.
Nesamony Nadar made an assignment in favour of
Dhasamma / the plaintiff's mother on 03.05.1961 under Ex.A.
17 / Ex.A.18. Dhasamma released the mortgage in favour of
Retnamony Nadar on 08.11.1961 under Ex.A.19 / Ex.A.20.
9. While so, on 26.04.1965 Palayyan one of the four
sons of Gnanathambi and Vedapoo sold 36 cents of land out of
1 acre and 44 cents in favour of Muthupillai under Ex.B.3.
Retnamony Nadar also sold 36 cents of land out of 1 acre and
44 cents on 14.07.1965 in favour of Muthupillai under Ex.B.5.
Abraham Nadar sold 30 cents of land out of 1 acre and 44
cents under Ex.B.7 dated 13.12.1965 in favour of Muthupillai.
Yesudhasan Nadar sold 36 cents of land out of 1 acre and 44
cents in favour of Muthupillai under Ex.B.9 dated 18.04.1966.
Abraham Nadar and his children filed O.S.No.273 of 1975 on
https://www.mhc.tn.gov.in/judis
8 S.A.(MD)NO.459 OF 2010
the file of the III District Munsif, Kuzhithurai, seeking the
relief of partition and redemption. Dhasamma figured as the
second defendant. Retnamony figured as the third defendant.
Muthupillai figured as the seventh defendant. The said suit
was dismissed by judgment and decree dated 02.01.1978. The
said judgment has been marked as Ex.A.1. Questioning the
same, the plaintiffs filed A.S.No.168 of 1978 before the Sub
Court, Kuzhithurai. The first appeal was dismissed on
08.07.1981. It has been marked as Ex.A.2. In the first appeal,
Muthupillai remained ex-parte. In the meanwhile, Muthupillai
and Abrahan Nadar sold 1 acre and 38 cents and 6 cents
respectively under a single sale deed in favour of the appellant
under Ex.A.5 dated 17.08.1978 and Ex.B.11 dated 07.08.1978.
After the judgment and decree of the first appellate Court,
Retnamony Nadar sold 25 cents of land in favour of the
plaintiff on 20.09.1988 under Ex.A.4. On the strength of
Ex.A.4, the present suit in O.S.No.478 of 1995 came to be
filed.
10. The vehement contention of the learned counsel
appearing for the respondent is that vide judgment dated
https://www.mhc.tn.gov.in/judis
9 S.A.(MD)NO.459 OF 2010
08.07.1981 in A.S.No.168 of 1978(Ex.A.2) it had been
categorically held that on 08.11.1973 Retnamony Nadar's title
over 25 cents of land in the suit property became perfect by
adverse possession. Since Muthupillai was also a co-defendant
in the said suit, the said finding became binding on
Muthupillai also. Abraham Nadar and others executed Ex.A.5
in favour of the present appellant only on 17.08.1978.
Muthupillai was therefore not competent to sell 1 acre and 38
cents in the property. He was competent to sell only 1 acre
and 13 cents.
11. There is no dispute that the principle of res
judicata can operate between co-defendants also. The Hon'ble
Supreme Court in the decision reported in 1995 (3) SCC 693
Mahboob Sahab Vs. Syed Ismail & Ors. had held that to
apply the said principle between the co-defendants, the
following four conditions must be satisfied:-
“(1) there must be a conflict of interest
between the defendants concerned;
(2) it must be necessary to decide the conflict
in order to give the reliefs which the plaintiff claims;
https://www.mhc.tn.gov.in/judis
10 S.A.(MD)NO.459 OF 2010
(3) the question between the defendants must
have been finally decided; and
(4) the co-defendants were necessary or proper
parties in the former suit. ”
12. Even a casual reading of the written statement
filed by G.Retnamony in O.S.No.273 of 1975 on the file of the
III Additional District Munsif, Kuzhithurai would show that
there was absolutely no conflict between Retnamony Nadar
and Muthupillai. As already pointed out, the suit property was
purchased by four brothers, namely, Retnamony, Yesudhasan,
Abraham and Palayyan. The plaintiff is the daughter of
Yesudhasan. Retnamony is none other than her uncle. All the
four brothers had executed four individual sale deeds in
favour of Muthupillai. Palayyan executed Ex.B.3 dated
26.04.1965 conveying 36 cents of land. Retnamony Nadar also
likewise conveyed 36 cents of land under Ex.B.5. Abraham
sold 30 cents under Ex.B.11 / Ex.B.12 dated 07.08.1978. He
also sold the remaining extent of 6 cents of land on
17.08.1978 under Ex.A.5 in favour of the appellant.
Yesudasan, the father of the plaintiff also sold 36 cents of land
https://www.mhc.tn.gov.in/judis
11 S.A.(MD)NO.459 OF 2010
in favour of Muthupillai under Ex.B.9 dated 18.04.1966. That
is why, when Abraham Nadar filed a suit for partition and
redemption, Defendants 2 to 6 filed joint written statement. It
is relevant to note that O.S.No.273 of 1975 related to quite a
few items. The subject matter of the present proceedings was
mentioned as plaint item No.2 in O.S.No.273 of 1975. The
third defendant filed written statement not only for himself
but also covering the case of Muthupillai. The defendants
contended that the plaintiffs' right to redeem the property
stood extinguished by adverse possession claimed by the third
defendant from 08.11.1961 onwards. The seventh defendant /
Muthupillai also filed written statement and the substance of
the same has been summarised in the judgment in O.S.No.273
of 1975 as follows:-
“ The 7th defendant is interested in plaint item
2 only which measures 1 acre 44 cents. This item
belonged to 1st plaintiff and defendants 3 to 5 under a
sale deed dated 04.06.1109. On 31.10.1962 the 7th
defendant got an assignment of mortgage of 1089 with
respect to plaint item No.2 from Gnanapoo Vedapoo
and came into possession of item 2. Defendants 3 to 5
https://www.mhc.tn.gov.in/judis
12 S.A.(MD)NO.459 OF 2010
sold their 3/4th right in plaint item 2 under sale deeds
dated 14.06.1965, 18.04.1966 and 26.04.1965
respectively to 7th defendant. With respect to the 1/4th
share ie., 36 cents the 1st plaintiff executed a renewal
mortgage in favour of 7th defendant on 09.11.1962 for
Rs.350/-. Out of the 36 cents mortgaged by the 1st
plaintiff he sold 30 cents to 7th defendant under sale
deed dated 13.12.1965, In this sale deed there is
direction to surrender 6 cents on payment of Rs.50/- to
1st plaintiff. 1st plaintiff has not claimed redemption of
this 6 cents and as such he is not entitled to redeem 6
cents in item 2 from the 7th defendant. The averments
that 7th defendant is in possession of 25 cents as
mortgagee is denied. The 7th defendant is in possession
of 1 acre 38 cents as owner and 6 cents as mortgagee
of 1st plaintiff. Plaintiffs are not entitled to partition of
31 ½ cents in item 2. 1st plaintiff is entitled to partition
of only 6 cents in item 2 subject to the mortgage right
of the 7th defendant under the mortgage dated
09.11.1962. Plaintiffs are not entitled to
extinguishment of mortgage right with respect to item
https://www.mhc.tn.gov.in/judis
13 S.A.(MD)NO.459 OF 2010
2. In case partition is allowed 7th defendant is entitled
to partition of 1 acre 38 cents in plaint item 2 and the
remaining 6 cents belongs to the 1st plaintiff subject to
the mortgage of 7th defendant. Hence, the suit must be
dismissed with costs of this defendant.”
13. The third defendant Retnamony did not contest
the aforesaid stand taken by Muthupillai, the seventh
defendant therein. It is safe to assume that Retnamony
endorsed the said stand of Muthupillai. That is because,
Muthupillai had purchased 1 acre and 38 cents of land under
four sale deeds from the four brothers individually. The
learned trial Munsif in his judgment dated 02.01.1978 in
O.S.No.273 of 1975 also noted that Abraham Nadar had
executed a mortgage in favour of Muthupillai in respect of his
1/4th share in item No.2 measuring 36 cents and subsequently
he had sold away 30 cents in item No.2 to the seventh
defendant himself. A further finding was specifically rendered
that the suit item No.2(present suit property) totally measures
1 acre and 44 cents. The first plaintiff (Abraham Nadar) and
defendants 3 to 5 (Retnamony, Dasan and Palayyan) who are
https://www.mhc.tn.gov.in/judis
14 S.A.(MD)NO.459 OF 2010
the sons of the first defendant Gnanathambi were entitled to
equal shares. Each of them was entitled to 36 cents and
defendants 3 to 5 already alienated the entire 3/4th right to the
seventh defendant. While the first plaintiff Abraham Nadar
sold away 30 cents of land to Muthupillai, it was observed that
if at all the plaintiff can claim only right over the remaining
extent of 6 cents over which Muthupillai had the mortgage
right. In other words, the plaintiffs can have claim over 6
cents of land subject to the mortgage right of the seventh
defendant. With such categorical findings, the suit came to be
dismissed. The appeal filed by the plaintiffs in A.S.No.168 of
1978 was also dismissed by the first Appellate Court. The
decree and judgment of the Trial Court was confirmed and the
appeal was dismissed. While dismissing the same, a passing
observation was made that Retnamony Nadar had confirmed
his title over 25 cents by adverse possession. Based on the
strength of such a passing observation, Retnamony Nadar
executed Ex.A.4 sale deed dated 20.09.1988 in favour of the
present plaintiff. The entire case of the plaintiff is anchored on
the aforesaid observation. Actually, the benefit of the said
finding will enure in favour of the seventh defendant
https://www.mhc.tn.gov.in/judis
15 S.A.(MD)NO.459 OF 2010
Muthupillai therein. Retnamony Nadar had absolutely no title
or interest in the suit property on account of his earlier
alienation in favour of Muthupillai under Ex.A.4. Therefore I
have no hesitation to answer the substantial questions of law
in favour of the appellant.
14. The impugned judgment and decree passed by the
first appellate Court is set aside and the decision of the trial
Court is restored. This second appeal is allowed. No costs.
01.03.2022
Index : Yes / No
Internet : Yes/ No
PMU
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 II Additional Subordinate Judge,
Nagercoil Camp at Kuzhithurai.
2. The II Additional District Munsif,
Kuzhithurai.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis
16 S.A.(MD)NO.459 OF 2010
G.R.SWAMINATHAN,J.
PMU
S.A.(MD)No.459 of 2010
01.03.2022
https://www.mhc.tn.gov.in/judis
