Arulayi and Others vs Rakka Kudumban

Venkatasubba Rao, J.—We wish to state at the outset, with a view to avoid any further confusion, that the suit out of which this appeal

arises, is concerned only with the central plot marked C-1, C-3, C-4 in the Commissioner''s plan Ex. D-l of the extent of 74 cents, out of the

larger parcel of 23 cents, which consists of three parts: the western, the central and the eastern parts. The point at issue, stated simply, which the

first Court had to try, was did the suit plot belong to the plaintiff Rakka Kudumban or to defendant 2 Mada Kudumban? If it belonged to

defendant 2, it is admitted that he having sold it to defendant 1, the latter was the owner on the date of the suit. The learned District Munsif held

that the plaintiff was the owner and defendant 2 was not. This finding necessarily negatived defendant 1''s right. The District Munsif, giving effect to

this view, passed a decree in favour of the plaintiff. An appeal was filed before the Subordinate Judge by defendant 1. The plaintiff alone was imp

leaded as the respondent, with the result that defendant 2 was not a party on the record in the appeal. The learned Subordinate Judge accepted

defendant 1''s case, and reversing the Munsif''s judgment, dismissed the plaintiff''s suit. A second appeal was filed by the plaintiff which came on

before Gornish J. The learned Judge held that the Munsif''s decree negativing defendant 2''s right became final in the absence of an appeal by the

latter and operated as a bar to defendant 1''s attempt to reopen that decision; in other words, there being no appeal by defendant 2 against the trial

Court''s finding, it had become res judicata (the question is rather one of finality of the finding that of res judicata) against defendant 1 who claimed

through defendant 2, Taking this view, the learned Judge allow, ed the second appeal. The question in the present Letters Patent Appeal is whether

the view of Cornish J. is right.

The learned Judge in support of his position relied upon the decision of the Judicial Committee in AIR 1927 252 (Privy Council) . If that

decision applies, this appeal is really unarguable, but the question is, does it apply? The facts of the Privy Council case are these. The plaintiff there,

having bought a certain property which had belonged to the insolvent, sued to recover it. He alleged that a transfer by the insolvent before his

adjudication to defendant 1, and transfers by defendant 1 and other defendants to one another successively, were all invalid. The suit was

dismissed. The plaintiff appealed to the High Court, but failed to join defendant 1 as a respondent. It was held that

owing to the failure to make defendant 1 a respondent, there was no appeal from this finding which had consequently become res judicata as

between the plaintiff and defendant 1 and must also be regarded as res judicata against the respondents, who claimed through defendant 1.

Now let us examine what this decision involves. It was from defendant 1 that the other defendants derived their title. The trial Court''s finding

was that the former had acquired a good title and it followed from this that each successive transfer was valid. For the plaintiff to succeed in the

appeal, it was essential that the finding in favour of defendant 1 should be vacated and what do their Lordships hold? In the absence of the

successful party, it would be wrong on the part of the Appellate Court to reverse a decision in his favour. Such a reversal would not be binding

upon him and would lead to two contradictory decisions. Their Lordships accordingly held that the first Court''s decision, having become final in

favour of defendant 1, must be taken to have equally become final in favour of the other defendants also they deriving their title from the former.

The present case is the converse of what has been decided by the Privy Council. Here the finding was against the party not imp leaded, i.e.

Mada Kudumban, defendant 2. The latter having parted with his right, had no subsisting interest in the property, and defendant 1 as the appellant,

in assailing the decree of the trial Court, must be deemed to assail it not only on his own behalf but on behalf of his vendor. If he succeeds in getting

the decree reversed, the reversal would operate to the advantage not only of himself but also of the absent party. In short, the basis of the Privy

Council decision is the fact that there was a, finding in favour of defendant 1, there, who was not imp leaded. Here, as already shown, the position

is the exact opposite; the person who is not imp leaded is the one against whom there is a finding. The difference may be thus illustrated. In the

Privy Council the finding in favour of defendant 1 became final. Supposing the plaintiff should succeed in his appeal, what would be the effect?

There would be a finding against the remaining defendants that they obtained no valid title. That would be inconsistent with the other finding in

favour of defendant 1, which had been allowed to become final. On the finding of the Appellate Court, the other defendants would have a right of

action against defendant 1 for breach of covenant of title; but, on the finding of the first Court., defendant 1 had and conveyed a valid title the

resulting position being inconsistent and incongruous. In the present case, by defendant 1 succeeding in the appeal (which in fact has happened),

the absent party suffers no prejudice, but on the contrary gets a benefit. To this distinction we refer, to illustrate the vital difference between the

Privy Council case and the present one, and to show that the principle applied by the Judicial Committee cannot be extended to a case of this sort.

We are therefore of the opinion that the view taken by Cornish J. cannot be upheld.

Mr. A. Swaminatha Iyer, the plaintiff''s counsel, has next endeavoured, to show that he has other grounds to urge in the second appeal, which

however he did not urge before Cornish J. by reason of the view the learned Judge took in his favour, on the question of res judicata. Having heard

him, we must say that he has utterly failed to show that there is any other ground available to him. In the result, the judgment of Cornish J. is set

aside and that of the Subordinate Judge is restored.

There is one small matter to which we must refer. One Perumal Kudumban was defendant 3 and it is said that although he did not appeal in the

lower Appellate Court, the learned Subordinate Judge reversed the trial Court''s decree in his favour also. That means we ought to decree the suit

against defendant 3, but we wish to make it clear, that the plaintiff is entitled to the eastern plot alone, and what was held to belong to defendant 3

is the western part, with which the plaintiff can have no concern. We make these observations on account of some confusion that crept in the

argument on this matter. The appellants'' costs throughout must be borne by the respondent.