Mr. Ramasamy vs Mr. Kuppusamy Udaiyar (died) and Others

The Hon''ble Mr. Justice R.S. Ramanathan

The plaintiff is the appellant herein. The appellant/plaintiff filed the suit for the relief of declaration that he is the owner of the suit property by

adverse possession and also on the basis of the patta issued by the respondents 2 to 4 in his favour.

The case of the appellant/plaintiff was that the suit property belongs to the Government and it was enjoyed by the father of the appellant/plaintiff

from the year 1936 by paying the kist to the Government and after his death, the appellant/plaintiff is enjoying the property by making

improvements to the suit property and is in possession of the same and therefore, he has also perfected title to the property, by adverse

possession, for more than a statutory period. Considering the legal possession and enjoyment of the property by the appellant/plaintiff, the

Government of Tamil Nadu also issued patta in his favour and on coming to know about the same, the first respondent/defendant applied to the

Revenue Officials to cancel the said patta and after conducting an enquiry, the application of the first respondent was rejected and the patta

granted in favour of the appellant/plaintiff was confirmed and the first respondent/defendant never had any possession and no patta was issued in

his name. As the first respondent/defendant with the help of defendants 2 to 4, was attempting to get patta in respect of the suit property and trying

to disturb the possession and enjoyment of the suit property, along with other defendants, the suit was filed for declaration that the

appellant/plaintiff is the owner of the suit property by adverse possession and on the basis of the patta issued in his favour and for injunction.

The first respondent/defendant contested the suit disputing the plaintiff''s right in respect of the suit property and also disputed the patta granted

in his favour by the Revenue Officials after conducting an enquiry. The first respondent/defendant further submitted that he filed a suit in

O.S.No.834 of 1985 on the file of the District Munsif Court, Kallakurichi, against the District Collector, one Mr.Rangasamy and the plaintiff in the

present suit, for the relief of declaration that the suit property and two other properties belonged to him and for injunction, restraining the

defendants in that suit viz., the District Collector and the plaintiff herein from interferring with their possession and enjoyment of the suit property.

That suit was decreed on 30.11.1990 and the same was challenged by the District Collector in A.S.No.28 of 1996, which was also dismissed.

Therefore, as per the judgment and decree passed in O.S.No.834 of 1985 the first respondent''s title to the suit property was upheld by the First

Appellate Court and the appellant/plaintiff was a party to the said proceedings and therefore, he is bound by the decree and the present suit is

barred under the doctrine of res judicata.

The trial Court decreed the suit holding that the judgment and decree passed in O.S.No.834 of 1985, will not operate as res judicata, as it was

an ex parte decree. Moreover, no finding was given on merits after hearing both the parties and hence, it will not satisfy the requirements of Section

11 of C.P.C. and the appellant/plaintiff herein proved his title by producing the patta and other revenue records and therefore, the appellant is

entitled to the relief of declaration and decreed the suit.

The First Appellate Court reversed the findings of the trial Court and allowed the appeal holding that the decree passed in O.S.No.834 of

1985, though ex parte decree, the same will operate as res judicata and when the appellant being a party to the said proceedings, cannot claim title

adverse to the first respondent herein and the patta will not confer any title on the appellant. Hence, the Second Appeal.

The Learned Counsel for the appellant submitted that the First Appellate Court erred in holding that the decree passed in O.S.No.834 of 1985,

will operate as res judicata, without properly appreciating the law laid down in Section 11 of C.P.C. According to the Learned Counsel for the

appellant, unless the matter is finally decided after hearing both the parties, the decision will not operate as res judicata and in the suit in

O.S.No.834 of 1985, the matter was not finally decided after hearing both the parties and it was an ex parte decree and therefore, it will not

operate as res judicata.

The Learned Counsel for the appellant further submitted that even assuming that the decree passed in O.S.No.834 of 1985, will operate as res

judicata, admittedly, the decree was passed on 30.11.1990 and even after getting the ex parte decree in his favour, the first respondent did not

exercise his right over the property and the property continued to be in possession of the appellant/plaintiff, evenafter the decree was passed

against him and after considering long possession of the appellant/plaintiff, the Revenue Officials also granted patta, after conducting enquiry and

that was sought to be annulled at the instance of the first respondent and that was rejected and the patta granted in favour of the appellant/plaintiff

was confirmed by the Revenue Officials. Therefore, the appellant/plaintiff has proved his possession for more than 12 years, from the date of the

decree. Hence, the appellant/plaintiff has perfected title over the suit property by adverse possession and that was not properly appreciated by the

First Appellate Court, while dismissing the suit.

I am unable to accept the contentions of the Learned Counsel for the appellant. Admittedly, the appellant is a party to the suit in O.S.No.834 of

1985, filed by the first respondent. The said suit was filed by the first respondent for the relief of declaration and injunction. The District Collector,

representing the South Arcot District, was the first defendant therein and the present appellant/plaintiff was the third defendant and the defendants

2 and 3 were set ex parte and after hearing the arguments of the plaintiff and the first defendant viz., the District Collector, the suit was decreed in

favour of the first respondent herein. Subsequently, the said decree was challenged by the District Collector in A.S.No.28 of 1996 which was also

dismissed by the First Appellate Court, by a judgment and decree dated 30.3.1999 and in that said appeal also, the appellant herein is the third

respondent. Therefore, it is seen from the judgment and decree passed in O.S.No.834 of 1985 and confirmed in A.S.No.28 of 1996, that the title

in favour of the first respondent was upheld and he was declared as the owner of the suit property.

Further, it cannot be contended that the decree passed in O.S.No.834 of 1985 was an ex parte decree. No doubt, the present plaintiff, who

was the third defendant and another person viz., the second defendant in that suit remained absent and they were set ex parte. Nevertheless, the

District Collector, who was the first defendant contested the suit and thereafter only, the decree was passed in favour of the first respondent herein

and the same was confirmed in appeal filed at the instance of the District Collector. Hence, the decree passed in O.S.No.834 of 1985, is a

contested one and it cannot be considered as ex parte decree, merely because, the present appellant/plaintiff remained absent and was set ex

parte.

Further, it is a settled law that even the ex parte decree will operate as res judicata and as a matter of fact, in the judgment reported in K.D.

Menon and Sunil Pictures (P) Ltd. Vs. Panchitra, the Hon''ble Division Bench of this Court has held as follows:

The doctrine of res judicata conceived in the larger public interest, which requires that all the litigation must, sooner than later, come to an end. The

principle is also founded on equity, justice and good conscience, which require that a party, who had once succeeded on an issue, should not be

permitted to be harassed by a multiplicity of proceedings involving determination of the same issue.

The expression ''''heard and finally decided"" occurring in Section 11 means, a matter on which the Court has exercised its judicial mind and after

argument and consideration of the materials before it arrived at a decision and passed a decree. Or in other words, the said words would mean

that, on the issue in question there has been an application of mind and final adjudication by a competent Court.

The applicability of res judicata does not depend on the decision being ex parte or bi-parte. The Supreme Court and this Court have repeatedly

held that a party is as much bound by an ex- parte decree as by a contested one. Only difference between an ex parte decree and bi parte decree

is, whereas in the former defendant was not present in the proceedings in the latter, he was present. In order that in an ex parte decree might be res

judicata, all that is necessary is that the defendant should have express notice of the pleadings and the prayer that a particular issue or matter would

be decided.

That being so, there is no substance in the plea of the plaintiffs that since earlier decree was one of ex parte, the same would not operate as res

juicata.

Therefore, the contention of the Learned Counsel for the appellant that the decree passed in O.S.No.834 of 1985, will not operate as res

judicata, cannot be accepted and it has been rightly rejected by the First Appellate Court. The other contention of the Learned Counsel for the

appellant is that the appellant/plaintiff perfected his title by adverse possession and even after obtaining the decree in the year 1990, the first

respondent did not take any steps to get possession of the property and the possession was with the appellant and his father and considering their

long possession, patta was granted, as evidenced by E.A1, and in the revenue records also, the appellant/plaintiff is recognized as title holder of the

suit property. It is a well settled law that the patta will not confer title. Further, no document was produced by the appellant/plaintiff to prove that

he was in possession of the property, after 1990 and prior to 1990. The documents produced by the appellant/plaintiff are all of the year 2006 and

2010 and that would not prove that the appellant/plaintiff perfected title by adverse possession against the first respondent.

Further, according to the appellant, the suit property belongs to the Government and he relied upon the patta issued by the Government in his

favour. When a person claims title to the property by adverse possession, it implies that he is holding the property against the true owner and in this

case, the appellant/plaintiff admitted that even in the year 1995, notice was issued, demanding rent from the appellant/plaintiff by the Revenue

Divisional Officer, as evidenced by Ex. A6, and thereafter, an enquiry was conducted and patta was granted in favour of the appellant/plaintiff.

Therefore, the appellant accepted the title of the Government and applied to the Government for issuing patta and hence, it is not open to the

appellant/plaintiff to contend that he perfected title by adverse possession. Moreover, the Government being a party to the suit in O.S.No.834 of

1985, cannot give patta in respect of the property covered under the suit in favour of the appellant herein and even assuming that the patta was

granted in his favour, that will not confer any title on the appellant/plaintiff.

The First Appellate Court rightly considered all these aspects and dismissed the suit and I do not find any reason to interfere with the judgment

and decree of the First Appellate Court and the trial Court, without properly appreciating the basic principle of law that ex part decree will operate

as res judicata, decreed the suit in favour of the appellant, holding that the ex parte decree will not operate as res judicata and that was rightly

rectified by the First Appellate Court, by allowing the appeal and no substantial question of law arises for consideration.

In the result, the judgment and decree of the First Appellate Court is confirmed and the Second Appeal is dismissed. In the circumstances of

the case, there shall be no order as to costs. Consequently, connected M.P. is closed.