Renganayaki and another vs K.R. Renganatha Mudaliar

This appeal is preferred against the judgment of the Subordinate Judge, Arani rendered in O.S.No.27 of 1985 and the question raised herein is

one of res judicata.

There were two cross suits between the same parties in the Subordinate Judge''s Court, Arani. One was for recovery of possession and the

other was for declaration and permanent injunction. The possession suit was filed by the respondent herein in O.S.No.27 of 1985 against the

appellants herein. The declaration and permanent injunction suit was filed by the first appellant herein in O.S.No.20 of 1986 against the respondent

herein.

The subject matter of both the suits was a storeyed house and adjoining vacant site. The respondent herein, in his suit, claimed ownership of the

suit property by virtue of sale deed dated 19.5.1983 alleged to have been executed by the appellants herein and sought for recovery of possession

from them. The first appellant herein, in her suit, asked for a decree declaring the sale deed dated 19.5.1983 as void and inoperative and for

permanent injunction restraining the respondent herein from interfering with their possession of the suit property.

Both the suits were tried together by the learned Subordinate Judge. Documents were marked in common and the oral evidence was let in

common. At the end, the Subordinate Judge decreed the suit for recovery of possession filed by the respondent herein and dismissed the other suit

of the first appellant herein for declaration and permanent injunction.

The appellants herein preferred only one appeal, i.e., the present appeal, against the decree in the suit for recovery of possession filed by the

respondent. The first appellant did not prefer appeal against the decree dismissing her suit for declaration and permanent injunction.

Mr.M.N. Padmanabhan, learned Senior Counsel for the respondent herein, raised a preliminary objection as to the maintainability of the appeal

on the ground that in the suit filed by the first appellant in O.S.No.20 of 1986, finding that the sale deed dated 19.5.1983 is valid and operative has

been given and the suit is dismissed and the first appellant had not appealed against and that finding has become final and it would operate as a bar

to a decision in this appeal on merits by the principles of res judicata. In support of this contention, he relied on the decisions of the Supreme Court

and this Court.

The first decision on which reliance is placed is Lonankutty Vs. Thomman and Another, and in that, the Supreme Court has held as follows:

Thus, the decision of the District Court rendered in the appeal arising out of the respondents'' suit became final and conclusive. That decision, not

having been appealed against, could not be reopened in the second appeal arising out of the appellant''s suit. The issue whether respondents had

the easementary right to the flow of water through the appellant''s land for fishing purposes was directly and substantially in issue in the

respondents'' suit. That issue was heard and finally decided by the District Court in a proceeding between the same parties and the decision was

rendered before the High Court decided the second appeal. The decision of the District Court was given in an appeal arising out of a suit, which

though instituted subsequently, stood finally decided before the High Court disposed of the second appeal. The decision was therefore one in a

''former suit'' within the meaning of Section 11, Explanation I C.P. Code. Accordingly, the High Court was in error in deciding an issue, which was

heard and finally decided in a ''former suit'' and was therefore barred by res judicaia.

Following the above decision of the Apex Court, V. Ramaswami, J (as the learned Judge then was) held in S. Kandaswami Chettiar as trustee

of S. Kandaswami Chettiar as trustee of Dharmaraja Koil Arkonam Vs. R.A. Murugesa Chettiar and Another, as follows:

It may be pointed out that the judgment of the Supreme Court was followed by two of the learned Judges of this Court, one by Shanmukham, J,

in Angappa Gounder v. Rajavelu, S.A.No.1612 of 1977, dated 6.2.1981, repotted in 1981 TLNJ 280 and the other by K. Khaja Mohideen Vs.

K. Muhaideen Batch and Others, . I am also in agreement with the view expressed by the two learned Judges. The appellant not having preferred

an appeal against the decree in O.S.No.170 of 1967, the appeal preferred against O.S.No.175 of 1960 is liable to be dismissed on the ground

that the finding in O.S.No.170 of 1967 is final and binding on the parties.

In the recent decision in Ram Prakash Vs. Smt. Charan Kaur and Another, , the Apex Court has held as follows:

It would be obvious that since the claims of the petitioner and the respondents have arisen from the same cause of action and the finding of the

appellate Court that damages had accrued to the respondents due to misfeasance or malfeasance having been allowed to become final, the decree

which is the subject-matter of the SLP cannot be assailed. The selfsame question was directly in issue and was the subject- matter of both the

suits. The same having been allowed to become final, it cannot be gone into since the same had attained finality, the petitioner having not filed any

appeal against the appeal dismissing the suit. In view of this situation, the High Court was right in concluding that the decree of dismissal of the suit

against the petitioner would operate as res judicata u/s 11, CPC in the appeal against which the petitioner has filed the second appeal.

The above decisions directly apply to the present case. The subject matter of the two suits in the present case was precisely the same.

Although the reliefs claimed were different, possession in one suit and declaration and permanent injunction in the other, the question that was

directly and substantially in issue in both the suits was whether the sale deed dated 19.5.1983 is valid and it was found to be valid by the learned

Subordinate Judge. The first appellant, not having preferred an appeal against the decree in O.S.No.20 of 1986, has preferred this appeal against

O.S.No.27 of 1985 and it is liable to be dismissed on the ground that the finding in O.S.No.20 of 1986 is final and binding on the parties.

Thus, on the basis of the aforesaid factual as well as legal proposition, it can safely be concluded that where two connected suits have been

tried together and the findings recorded in one of the suits have become final, in absence of an appeal, the appeal preferred against the findings

recorded in the other suit would definitely be barred by the principles of res judicata.

For the foregoing reasons, the appeal fails and it is dismissed. There will be no order as to costs.