Madras High Court
Pavadaisamy vs Lakshmi Sudersan on 2 March, 2022
S.A.No. 63 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.03.2022
CORAM:
THE HONOURABLE Mr. JUSTICE S.S.SUNDAR
S.A. No.63 of 2022
and C.M.P. No.1229 of 2022
Pavadaisamy .. Appellant
Vs.
Lakshmi Sudersan .. Respondents
Second Appeal filed is under Section 100 of Civil Procedure Code, 1908,
against the judgment and decree dated 20.12.2019 made in A.S.No.37 of 2018
passed by the learned Sub-Judge, Chidambaram, confirming the judgment and
decree dated 21.03.2018 made in O.S. No.282 of 2011 passed by the learned
Additional District Munsif Court, Chidambaram.
For Appellant : Mr. S.Sathish Rajan
For Respondent : No appearance
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S.A.No. 63 of 2022
JUDGMENT
The plaintiff in the suit in O.S. No.282 of 2009 on the file of Additional
District Munsif Court, Chidambaram, is the appellant in this appeal. The
appellant filed a suit in O.S. No.282 of 2009 for declaration of title and
consequential permanent injunction restraining the defendant from in any
manner interfering with the plaintiff's peaceful possession and enjoyment of
the suit property. The suit property is described as a house site measuring an
extent of 1755.25 sq.ft., located within the layout known as Kali Amman Nagar
in S.No.25/3D.
2. The case of the plaintiff / appellant in the plaint is that he is the owner
of plot No.1, situated at Thillai Kali Amman Nagar, as he purchased the same
under a registered sale deed dated 22.08.2003 from the promoter. The
defendant is the owner of plot No.22 and 23 in the same layout by virtue of the
sale deed dated 22.08.2003. The plaintiff constructed his house in Plot No.1
and resides in the said house along with his family members. The defendant
filed a suit in O.S. No.135 of 2005 on the file of District Munsif Court,
Chidambaram, as against the appellant herein and two others for mandatory
injunction on the ground that the appellants had trespassed into the property of
defendant which lies on the northern side of Plot No.1 purchased by the
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S.A.No. 63 of 2022
appellant / plaintiff. The plaintiff has put up a fence on all sides of his plot and
he is in enjoyment of the entire extent within the fence. It is stated that the
plaintiff has never made an attempt to trespass or encroach into the property of
the defendant. However, on 02.10.2011, the defendant came to the suit property
and directed the plaintiff to remove the northern fence of Plot No.1 stating that
the previous suit filed by him ended in his favour. Hence the appellant has filed
the present suit for declaration of his title to the suit property and consequential
injunction. The suit property is shown as an extent of 87 sq.ft., (3' x 29') within
plot No.1.
3. The suit was contested by the defendant by stating that she is the
owner of Plot No.22 and 23 and that the plaintiff along with adjacent owner by
name Chandrasekhar trespassed into the defendant's property to an extent up to
6 ft. by putting up a dry fence. The suit in O.S. No.135 of 2005 filed by the
defendant earlier was decreed and the defendant has also filed an execution
petition in E.P. No.2 of 2011 to execute the decree for mandatory injunction.
Despite the decree was granted in the earlier suit, the plaintiff has filed the
present suit without there being a cause. It is further stated that the suit is bared
by principles of res judicata and filed within an intention to stall the execution
in the previous suit.
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S.A.No. 63 of 2022
4. The trial Court dismissed the suit with a finding that the defendant had
filed the earlier suit in O.S. No.135 of 2005 and obtained a decree for
mandatory injunction after contest with regard to the same property which is
the subject matter of the suit. Very strangely, before the lower Court, the
appellant contended that there was no relief for declaration of title in the
previous suit and therefore, the present suit for declaration of plaintiff's title to
an extent of 87 sq.ft, is not barred as the present suit is a comprehensive one.
This argument suggest that the appellant has filed the suit only to circumvent
the decree in the previous suit to establish his title to the specific portion which
was found to be encroached by the appellant in the previous suit.
5. Aggrieved by the judgment and decree of the trial Court, the plaintiff
preferred an appeal before the Sub-Court, Chidambaram in A.S. No.31 of 2018.
The lower appellate Court dismissed the appeal and confirmed the judgment
and decree of the suit in O.S. No.282 of 2011 holding that the judgment in the
previous suit will operate as res judicata. Aggrieved by the concurrent findings
of the Courts below, the above second appeal is preferred by the plaintiff in the
suit.
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S.A.No. 63 of 2022
6. It is to be noted that the lower appellate Court specifically held that the
subject matter of the suit in the previous suit in O.S. No.135 of 2005 and the
present suit are one and the same. In view of the specific finding in the earlier
suit, the issue in the present suit cannot be held against the defendant who had
succeeded in the previous suit. The principle of res judicata is based on the
principle that no person can be vexed twice and there should be finality in
litigation. After the decree in O.S. No.135 of 2005, the plaintiff in the present
suit who was the defendant in the previous suit is supposed to comply with the
decree for mandatory injunction. However, the plaintiff has filed a fresh suit by
projecting a new theory that the previous suit was filed with a different cause of
action and without a prayer for declaration of title and hence the present suit is
not barred.
7. The principle of res judicata is to operate as an estoppal against the
judgment. In the previous suit, the judgment of the Court was that the plaintiff
has encroached into the property of defendant in the present suit and therefore,
he should be directed to vacate the property so that the encroached portion will
come under the enjoyment of the defendant. However, quite surprisingly the
plaintiff who is the defendant in the previous suit has come forward with the
present suit for declaration that the property which was held to be the property
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S.A.No. 63 of 2022
of defendant should be declared in favour of plaintiff. This is nothing but a
ridiculous attempt to circumvent the decree in the previous suit between the
same parties and to deprive a person's right to execute the decree. The lower
appellate Court has applied its mind to the facts in full and found that the
present suit is barred by the principles of res judicata in view of the judgment
and decree passed in the earlier suit in O.S. No.135 of 2005.
8. The suit for permanent injunction or mandatory injunction decided
earlier will also operate as res judicata particularly in the present case and the
party to the litigation cannot reopen or re-agitate the same issue. It will be an
abuse of process of law to allow such litigation.
9. None of the substantial questions of law raised by the appellant merits
consideration in view of the specific findings of the Courts below. As a result,
this Second appeal is dismissed. No costs. Consequently, connected
miscellaneous petition is closed.
02.03.2022
Index:Yes/No
Speaking order / Non speaking order
bkn
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S.A.No. 63 of 2022
To
1.The Sub-Judge, Chidambaram.
2. The Additional District Munsif, Chidambaram.
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S.A.No. 63 of 2022
S.S.SUNDAR. J.,
bkn
S.A. No. 63 of 2022
02.03.2022
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