Rangaraja Nattar vs Subramania Chettiyar and Another

Raju, J.—The above second appeal has been filed against the judgment and decree of the learned Subordinate Judge, Thanjavur in A.S.

No. 85 of 1993, confirming the judgment and decree of the learned District Munsif, Thiruvaiyaru in O.S. No. 117 of 1990.

The suit was filed by the appellant for declaration of title and for recovery of possession. The claim was contested by the

defendant/respondents. After trial, the learned District Munsif, Thiruvaiyaru, on a careful consideration of the oral and documentary evidence,

came to the conclusion that the suit is hit by the principles of res judicata and that even on the merits of the claim the plaintiff has not produced

sufficient evidence or material to substantiate his rights or title. On that view, the trial court dismissed the suit by its judgment and decree dated

29.4.1992. Aggrieved, the plaintiff filed an appeal in A.S. No. 85 of 1993 before the learned Subordinate Judge, Thanjavur. The lower appellate

court also concurred with the findings recorded by the trial court both on the merits of the claim as also on the question of res judicata.

The learned Counsel appearing in this Court contended that the courts below committed an error in applying the principles of res judicata to

non-suit the claim of the plaintiff and that in a case where a matter has been collaterally or incidentally put in issue and decided in an early

proceedings the findings recorded therein cannot be said to constitute res judicata in a regular subsequent suit with a property framed prayer for

declaration and that this aspect has been totally ignored by the court below. Reliance was also placed on the decision reported in Smt. Gangabai

Gilda Vs. Smt. Chhabubai Gandhi, . That was a case where the earlier suit in which a finding as to title was said to have been rendered was by a

Court of Small Causes. It is well-settled that a Court of Small Causes has no jurisdiction to adjudicate on questions relating to the title to

immovable property and that a question of title in a small cause suit can be regarded as incidental only to the substantial issue in the suit. It is only

on that view, Apex Court held that the said findings rendered cannot operate as res judicata in a subsequent suit in which the question of title is

directly raised. The observations of the Supreme Court has to be construed with reference to the powers of the court, which rendered the earlier

decision. As far as the case on hand is concerned, the lower appellate court has placed reliance upon the decision of this Court reported in C.

Arumughathan v. S. Muthusami Naidu (1991) 1 L.W. 63, wherein it has been held that once it is found that the decision in the earlier suit was

necessary certainly it will operate as res judicata even though the earlier suit is one for bare injunction. On the facts and circumstances of the case,

both the courts below have found that the earlier findings were necessary and therefore, it constituted res judicata so far as the present suit is

concerned. On the merits, on going through the judgments of both the courts below, I am satisfied that both the courts below have appreciated,

analysed and considered the evidence on record in their proper perspective and recorded findings, which are well merited on the materials placed

before them. Consequently, there is no scope for challenging the said questions of fact rendered on appreciation of evidence placed before the

courts below, in this second appeal.

The second appeal, therefore, fails and shall stand dismissed. Consequently, the civil miscellaneous petition is also dismissed.