Mahboob Bi vs S. Ansar Bi (Died) and Others

The Honourable Mrs. Justice Aruna Jagadeesan

This Second Appeal is filed by the Plaintiff against the judgment and Decree dated 8.12.2009 passed in AS. No. 313/2007 by the learned I

Additional Subordinate Judge, Trichirappalli, confirming the judgment and Decree dated 29.08.2007 passed in OS. No. 2847/2004 by the

learned II Additional District Munsif, Trichirappalli.

The case of the Plaintiff, as set out in the plaint, is as follows:

a. The suit property is part of a large extent of house bearing Door No. 29, South Bangali Street, Woraiyur, Tiruchirappalli. The TS. No. is 1944.

One Mammu Saheb was the original owner of the entire property. He had two wives by name (1) Ayisha and (2) Donthiammal and two daughters

by name (1) Haithoon Bi and (2) Fathima Gani through his first wife and had one daughter by name Halima and two sons by name (1) Mohamed

@ Bawa Saheb and (2) M.S. Dawood Saheb through his 2nd wife. Halima had two sons by name (1) T.K. Gul Mohamed and (2) T.K. Sheriff.

The Plaintiff is the daughter of T.K. Gul Mohamed. The Defendants are the wife and children of T.K. Sheriff. After the death of Mammu Saheb,

there had been an oral partition. The suit property and the adjoining property was allotted to the shares of M. Noor Mohamed @ Bawa Saheb

and M.S. Dawood Saheb and they were in possession and enjoyment of the same. The property tax was assessed in the name of Bawa Saheb.

On 19.1.1976, Bawa Saheb and Dawood Saheb had executed an irrevocable gift settlement of the property in favour of the Plaintiff and the same

was duly executed, attested and registered according to law. The Plaintiff had accepted the gift and was placed in possession of the property.

There was a mortgage deed executed by Bawa Saheb and Dawood Saheb in favour of Tiruchirappalli City Cooperative Bank Ltd. The Plaintiff

was directed to pay Rs. 3000/- due under the mortgage and redeem the same. The Plaintiff had discharged the debt and got back the documents

of title. The Plaintiff continued to be in possession of the property. On 26.9.1983, the Plaintiff and Bawa Saheb had sold a portion of the property

to Waheeda Bi for a valuable consideration of Rs. 17,000/- and delivered possession to her. She had constructed a RCC roof construction in the

vacant space and had made other improvements in the property on 8.2.1999. The Plaintiff had mortgaged the remaining property in favour of the

said Bank and borrowed money and had discharged on 3.2.2003.

b. The suit property now bears Door No. 29/1. The Plaintiff has paid the house tax. She has also paid water and electricity charges in her name.

One Allaudin, the grand son of Mammu Saheb through his first wife, had filed a suit in OS. No. 122/1977 on the file of the Sub Court, Trichy

against Bawa Saheb and Ors. for partition and separate possession of his share in the property. The Plaintiff was not added as a party to the said

suit. The Defendants'' father T.K. Sheriff had claimed a share in that suit and he was allotted a share. The suit was transferred to District Munsif

Court, Trichy and numbered as OS. No. 1871/1982. The Defendants, after the death of their father, had filed an execution petition for delivery of

the share of T.K. Mohd.Sheriff and an order for delivery of possession was passed by the I Additional District Munsif Court, Trichy and the

Defendants are attempting to take delivery of possession as per the above order on 3.1.2003. The above order is not binding on the Plaintiff. The

Plaintiff had prevented the same. The Defendants had threatened to come again with further orders from the court and take delivery of possession.

Since the Plaintiff was not a party to the suit in OS. No. 122/1977, she need not seek to set aside the said decree. In such circumstances, the suit

has been filed for declaration that the Plaintiff is the absolute owner of the suit property and permanent injunction restraining the Defendants from

interfering with the possession and enjoyment of the suit property of the Plaintiff either by executing the decree in OS. No. 1871/1982 on the file of

the District Munsif Court or otherwise.

The case of the Defendants, as set out in the Written Statement filed by the 1st Defendant and adopted by the other Defendants, is as follows:

a. Admittedly, the suit in OS. No. 1871/1982 was filed by Allavudeen for partition against Bawa Saheb and others. The husband of the 1st

Defendant by name T.K. Sheriff was the 4th Defendant in that suit. The suit property is a portion of the first item covered in the suit in OS. No.

1871/1982, in which a preliminary decree was passed on 20.9.1999 and the same was proceeded with by way of final decree in IA. No.

579/1998 by T.K. Sheriff for a division of the properties by metes and bounds and for allotment of 11/32 share. During the pendency of that

proceedings, the said T.K. Sheriff died. His legal representatives were impleaded as the Plaintiff minors 2 to 8. The 1st Defendant is the 2nd

Petitioner in IA. No. 579/1998. The Plaintiff in this suit is the 29th Respondent in the final decree application and she remained exparte. The final

decree petition was contested by the Respondents 2 to 4, 27, 30 and 31 and after that, a final decree was passed on 01.12.2000. The final decree

was passed only after the completion of enquiry after contest.

b. Again an execution petition was filed by the Defendants and an Advocate Commissioner was appointed and the Commissioner has also

inspected the property and filed his report. In pursuance of the same, an execution petition is pending. This suit is barred under the principles of

res-judicata. Since the matter was already decided in OS. No. 1871/1982, the present suit is nothing but a second round of litigation with a view

to block the Defendants from getting delivery of their property. The allegations contained in the plaint are all false. The alleged gift settlement deed

dated 9.1.1976 is not a true one and is a fabricated, concocted and forged one. The alleged settlement deed has no legal effect. The truth, validity,

genuineness, due execution, attestation and registration of the same are all specifically denied. Further, it is also denied that the Plaintiff had

accepted the gift and she was placed in possession and had executed a mortgage deed. It is denied that on 26.9.1983, the Plaintiff and Bawa

Saheb had sold a portion of the property to Waheeda Bi and delivered possession of the same. Waheeda Bi is a party to the suit in OS. No.

1871/ 1982 and she is the 30th Respondent in the final decree petition. She had also contested the Respondent in the final decree petition. It is

denied that the Waheeda Bi is in possession and enjoyment of the property as per the sale deed dated 26.9.1982 and the sale deed is a forged

one. The allegation that Waheeda Bi has made improvements is denied. The alleged mortgage deed is also a rank forgery. The alleged oral

partition is a false one. The Plaintiff is bound by the decree passed in OS. No. 1871/1982. The Plaintiff is aware of the prior suit for partition. The

suit is hit u/s 41 of the Specific Relief Act and Section 11 of Code of Civil Procedure. Hence, the suit is liable to be dismissed.

On the pleadings of both the parties, necessary issues were framed by the Trial Court. Before the Trial Court, on the side of the Plaintiff, Exs.A1

to A6 were marked and PW.1 was examined. On the side of the Defendants, Ex. B1 and B2 were marked.

The Trial Court, after considering both the oral and documentary evidence, dismissed the suit and the appeal filed as against the judgment and

Decree of the Trial Court by the Plaintiff was also dismissed by the lower Appellate Court. Hence, this second appeal has been filed by the

Plaintiff.

When this second appeal came up for admission on 24.06.2010, only notice was ordered and the appeal was not admitted. After service of

notice, it came up for hearing and the Learned Counsel on either side advanced their arguments in the notice of motion stage.

Mr. K. Govindarajan, the Learned Counsel for the Appellant mainly contended that the findings of the courts below applying the principles of

res-judicata to the instant case cannot be sustained, in the absence of pleadings and judgement of the earlier suit in OS. No. 1871/1982 on the file

of the District Munsif, Trichirappalli. The Learned Counsel pointed out that the courts below have come to the conclusion that the present suit in

OS. No. 2847/2004 is barred by the principles of res-judicata by just relying on Ex. B1 copy of final decree passed in IA. No. 579/1998 in OS.

No. 1871/1982 and thus, erred in arriving at the said conclusion. The Learned Counsel urged that mere filing of a final decree in the earlier suit is

not sufficient and when a plea of res-judicata is raised, the Respondent had to place all the necessary documents such as pleadings, judgement and

records to decide the said question and in the absence of such documents being placed, the trial court has erred in holding that the suit is barred by

the principles of res-judicata. In support of his contention, he placed reliance on the judgement of this Court reported in 200 13 LW 483

(Kuppusamy Gounder and Ors. v. Kannammal and Ors. wherein, it is observed that in the absence of proof regarding the pleadings and issues in

order to invoke the plea of res-judicata, the Defendant cannot be allowed to contend that the suit is barred on the plea of res-judicata.

On the other hand, Ms. J. Maria Roseline, the Learned Counsel for the Respondents contended that merely because the pleadings of the parties

in earlier suit were not available before the court in the subsequent suit, it could not be said that there was non compliance of mandatory and basic

requirements, when each one of the conditions necessary to satisfy the test as to the applicability of Section 11 of CPC was found satisfied.

I have heard the Learned Counsel for the parties and examined the judgement of the courts below and other materials placed on record

including the oral and documentary evidence. this Court, when its attention was drawn to the fact that the pleadings in the earlier suit was not made

available before the courts below, in the interest of justice, directed the Respondents to produce the copy of the pleadings and judgement passed

in OS. No. 1871/1982 and accordingly, the copy of the same were produced before this Court.

It is true that if an earlier judgement has to operate as res-judicata in the subsequent proceedings, then all the necessary facts including

pleadings of the earlier litigation must be placed on record in the subsequent proceedings. In the final decree in IA. No. 579/ 1998, there is a

reference to the suit property and parties to the earlier suit. PW.1, the husband of the Plaintiff had admitted in his evidence about the final decree

passed in IA. No. 579/1998 in OS. No. 1871/1982. It is also admitted by him that the Plaintiff had been shown as the Respondent No. 29 in the

said proceedings. The further admission in his evidence is that the suit property is part of the larger extent shown as the suit property in OS. No.

1871/1982. The courts below have referred to the pleadings of the parties in the earlier suit with reference to the copy of the final decree passed in

OS. No. 1871/1982 which was produced by the Respondents along with Commissioner''s report and specifically answered the issue by holding

that the question of title and ownership of the suit house were substantially involved in OS. No. 1871/1982 and the same was decided by a

competent court and further, there was no appeal against the judgement and decree passed in OS. No. 1871/1982 a suit filed for partition,

wherein the predecessors of the Appellant/plaintiff had been made as parties. The reasoning of the courts below cannot be found fault with and it is

pertinent to note that the courts below have rightly come to a conclusion that each one of the conditions necessary to satisfy the test as to the

applicability of Section 11 of CPC is satisfied.

It is, of course, true that unless one is a party to the proceedings, the decision therein does not bind him. But, this preposition has an exception,

namely, if the predecessor in interest was a party thereto involving the same property and such person claims through a person who was a party to

the proceedings, then the said decision binds him. In the earlier suit, the alleged settlors, namely, Bawa Saheb and Dawood Saheb and the father of

the Plaintiff, namely, T.K. Gul Mohammed were parties and admittedly, they had not raised any plea of oral partition or the execution of gift

settlement deed in favour of the Appellant/plaintiff in the earlier proceedings. In fact, on the death of T.K. Gul Mohammed, the Plaintiff and his

sister were impleaded as parties and the application filed u/s 47 of CPC by his sister has ended in dismissal. In the facts and circumstances of the

case, the Plaintiff having claimed interest through the said settlors namely Bawa Saheb and Dawood Sahib, and as both whom were parties to the

earlier suit, the decision therein would operate as res-judicata.

Yet another contention of the Learned Counsel for the Appellant is that the claim made by the Appellant/plaintiff was not heard and finally

decided by the court in the former suit and therefore, the exparte decree passed against his predecessors in interest could not operate as res-

judicata. I am unable to agree with the said contention of the Learned Counsel for the Appellant. It is seen that in the earlier suit, though the

Mohamed Bawa Saheb and Dawood Saheb, under whom the Plaintiff claims title, were parties, in spite of their impleadment, they have not chosen

to contest the suit. It is well settled that an exparte decree

is binding, as a decree passed after contest on the person against whom such an exparte decree has been passed. It is equally well settled that an

exparte decree would be so treated unless the party challenging the ex-parte decree satisfies the court that such an exparte decree has been

obtained by fraud. It is also pertinent to note that the final decree proceedings were initiated and the same has been passed. There was no

challenge made against the decree passed in the earlier suit either by the Appellant/ Plaintiff or the other legal representatives of the other branch.

Since the Appellant could not make out a case of fraud or collusion or challenged even the exparte decree it is difficult to accept the contention of

the Learned Counsel for the Appellant. Such being the position, I am unable to hold that since the matter was not heard and finally decided, the

principles of res judicata could not be applied in the present case.

At this juncture, it is relevant to refer to the observation made by the Honourable Supreme Court in the case of Saroja Vs. Chinnusamy (Dead)

by L.Rs and Another, . It is observed as follows:

We are in full agreement with this view of the Madras High Court holding that a decree which is passed ex parte is a good and effective as a

decree passed after contest. A similar view has also been expressed by a Division Bench of the Allahabad High Court in the case of Bramhanand

Rai and Another Vs. Dy. Director of Consolidation, Ghazipur and Others, . However, the Learned Counsel for the Appellant relying on a decision

of the Madras High Court, namely, A.S. Mani (deceased) by L.Rs. Thirunavukkarasu and Others Vs. Udipi Hari Niwas and Others, invites us to

hold that the principle of res-judicata would not apply as the former suit was decided exparte. This decision, in our view, is distinguishable on facts.

In that decision, the observation that the exparte decree shall not operate as res judicata was made on the basis that the earlier petition which was

filed for eviction against the tenants was dismissed only on technical grounds and after keeping this fact in mind only, the Madras High Court held

that the ex parte decree would not operate as res judicata inasmuch as the petition was not heard and finally decided as contemplated in Section

11 of Code of Civil Procedure. Therefore, in our view, since condition N.(iv) as noted herein before, was satisfied, we hold that the principles of

res judicata would be applicable in the present case as held by the first appellate court and also affirmed by the High Court.

The Learned Counsel for the Respondents also drew attention of this Court to Section 41(a) of the Specific Relief Act which restrains the

court from granting an order of injunction, preventing a person from prosecuting a judicial proceedings unless such order is necessary to prevent a

multiplicity of proceedings. Section 41 of the Specific Relief Act imposes an absolute bar to the granting of an injunction in cases specified in the

Section. An injunction cannot be granted restraining the execution of a valid decree passed by a competent court. The reason being that it may

defeat the very object of obtaining the decree. Therefore, there can be no doubt in this case that no order of injunction could be granted restraining

the Respondents from executing the decree validly obtained.

In view of the reasons stated above, this second appeal merits dismissal at the admission stage itself, as there is no substantial question of law

involved in this case.

In the result, this second appeal is dismissed. However, in the circumstances of the case, there will be no order as to costs.