R.V. Thirunavukkarasu Mudaliar vs S.V. Parthasarathi and others

Ismail, J.—The plaintiff in O.S. No. 2395 of 1966 on the file of the City Court, Madras who succeeded before the trial Judge, but loss

before the I Additional Judge, City Civil Court, Madras is the appellant herein. There are a large number of transactions and dealings between the

parties and conflicting and rival claims of title. But having regard to the narrow scope within which I propose to dispose of this second appeal, it is

unnecessary to refer to all of them in detail. It is not in dispute that the suit property of an extent of 2 acre and 81 cents originally belonged to one

Andalammal, her husband and their four sons including one Kuppuswami Naicker the Vendor of the appellant herein. These owners sold the entire

extent to one Jayarama Iyer and his brothers for a sum of Rs. 2,000/- representing the principal amount and interest which was then due under a

mortgage executed by Kanakammal, the mother of Andalammal in favour of the vendees'' father Krishnaswami Iyer. However, Andalammal, her

husband and her children resisted delivery of possession and Jayarama Iyer and his brothers filed O.S. No. 60 of 1941 on the file of the Court of

the District Munsif of Poonamallee for recovery of possession of the entire property impleading not only Andalammal and her family but also

Govindasami Nattar and Murugappa Naicker, Venders of two portions of the property in 1939. A compromise decree was passed in that suit and

it was agreed as part of the compromise that Jayarama Iyer and his brothers were entitled to the property, but if Andalammal and her family paid a

sum of Rs. 2,700/- with interest at 6 per cent per annum from the date of the compromise, within a year from the date of the decree, they shall be

declared as the owners of the entire 2 acres and 81 cents. It is again admitted that Andalammal and her family sold 2 acres and 66 cents out of 2

acres and 81 cents to one Basha Sahib for getting back the property and ultimately paid the amount as agreed to and got back only the balance,

namely 2 acres 81 cents minus 2 acres 66 cents. It is with regard to this 15 cents which, on ground is said to be 21.77 cents that the present

controversy arises. The appellant herein is a purchaser from Kuppuswami Naicker son of Andalammal, under Ex. A-1 dated 3rd July, 1947 and

under that document Kuppuswami Naicker purported to sell to the appellant herein a specific extent of 5� cents within a stated boundaries,

giving the measurements also. The 1st respondent herein, namely, 6th defendant, purposed to claim interest in the property by purchase under two

documents Ex. B-2 dated 15th December, 1957 and Ex. B-3 dated 16th November, 1957 executed by Nagammal and Andalammal respectively.

The appellant instituted O.S. No. 1363 of 1958 on the file of the City Civil Court, Madras, for recovery of possession of the suit property from the

first respondent herein. That suit was dismissed. The appellant preferred an appeal, A.S. No. 123 of 1964, against the said dismissal and the said

appeal was disposed of by the learned Principal Judge by his judgment dated 23rd April 1965, a printed copy of which is marked as Ex. A-6 in

these proceedings. In this judgment, the learned Principal Judge held that the appellant had title to the property, namely to the share of

Kuppuswami Naicker in the 15 cents or 21.77 cents referred to already and that the first respondent herein had not obtained any title to the suit

property. Notwithstanding this finding, the learned Principal Judge dismissed the suit of the appellant holding that his proper remedy was not to

seek for recovery of possession of identical property sold under Ex. A-1 but to apply for a general partition of the properties of Kuppuswami

Naicker and the members of his family and ask for the allotment of Kuppuswami Naicker''s shares towards the property which he purchased

under Ex. A-1. This is referred to in Para. 23 of his judgment where the learned Principal Judge has summed up his findings as well as in Para. 24

whew he has passed orders disposing of the appeal. In Para 23, the learned Principal Judge has stated:

But as his mother and his three brothers ware not parties to the said sale, they are certainly entitled to object to the appellant''s claim for delivery of

the suit property and I have already indicated that the appellant''s suit for possession of the suit property must fail and his only remedy is to file a

comprehensive suit for partition against Andalammal and her four SODS and to claim that the suit property should as far as possible be allotted to

him that if that was not possible to have 4.59 cents or any other portion of 21.77 cents which represents too actual share of Kuppuswami, be

allotted to him.

In Paras 24 again the learned Principal Judge has stated :

In the result the appeal fails and is dismissed but the parties will bear their own costs, here and in the Court below. The appellant will be at liberty

to sue for partition in a separate suit and seek to have the suit property or its equivalent if he is so advised. He will be entitled in that suit only to the

share which lawfully belonged to his vendor.

It is thereafter that the present suit for partition and separate possession of what the appellant purchased under Ex. A-1 was instituted. To this suit,

the first respondent herein was impleaded as the 6th defendant, and Andalammal and others claiming along with her were impleaded as defendants

1 to 5. The learned VIII Assistant Judge, who disposed of the suit finally passed a decree to the effect that the appellant is entitled to a preliminary

decree for partition of a plot of land measuring 80'' east-west and 25'' north-south at the South-western corner of the suit property, Against this

decree, the 6th defendant, first respondent herein, preferred an appeal, namely A.S. No. 351 of 1970, The learned I Additional Judge, City Civil

Court, Madras, by his judgment dated 29th February, 1972 allowed the appeal and dismissed the suit instituted by the appellant herein holding that

the appellant had not made out his right, title and interest in respect of the partition claimed by him as per the sale deed Ex. A-1 and therefore he is

not entitled to a decree for partition as prayed for. It is against this judgment and decree that the present second appeal has been filed by the

plaintiff in the suit.

I am clearly of the opinion that the conclusion of the learned I Additional Judge is erroneous. I have already referred to Ex. A-6. That clearly

records a finding that the appellant herein had purchased a specific extent of property under Ex.A-1 from Kuppuswami Naicker, that since

Kuppuswami Naicker as one of the co-owners who were entitled to 15 or 21.77 cents, the appellant was not entitled to obtain a specific extent of

property by virtue of the sale deed he got from Kuppuswami Naicker, but that his right was to file a suit for general partition and to have the suit

property allotted to the share of Kuppuswami Naicker at that partition or at any rate to get whatever Kuppuswami Naicker was entitled to in the

15 cents or 21.77 cents at that partition. Now that question for consideration is, whether that decision would constitute res judicata or not. I have

already referred to the fact that the only parties to the said decision were the appellant and the first respondent herein. Mr. T.R. Mani, learned

counsel for the first respondent, contends that it would not constitute res judicata because the suit was finally dismissed and therefore the 1st

respondent could not have preferred an appeal against that decree. In the first place, the decree in A.S. No. 123 of 1964 has not bean filed into

this court and therefore we do not know whether in that decree the finding of the learned Principal Judge holding that the appellant had title to the

property, but his right was only to file a suit for partition and not to sue for recovery of possession of specific item of property was incorporated or

not. Therefore, I am proceeding to deal with the question on both the cases, namely, that the said finding was incorporated in the decree and that is

was not so incorporated in the decree.

Prima facie, having regard to the repetition of the same language is paragraphs 22 and 24 of Ex. A-6 judgment, it is reasonable to infer that that

portion of the finding of the learned Principal Judge that the appellant had title and that his remedy was to file a suit for partition would have been

incorporated in the decree. If it had been incorporated in the decree, there is no dispute even from Mr. T.R. Mani, that the first respondent would

have had a right to prefer an appeal and since he had not preferred an appeal, that finding would constitute res judicata as between the appellant

and the respondent with reference to the title of the appellant herein.

Now I shall consider the question on the footing that that finding was not incorporated in the decree in A.S. No. 123 of 1964. The question for

consideration then is, what exactly the nature of the controversy was on which the finding was given. I am clearly of the opinion that the

controversy was basic and fundamental to the dispute between the parties. The appellant claimed title to a portion of the suit property by virtue of

his purchase under Ex. A-1 sale deed from Kuppuswami Naicker. The first respondent, on the other hand, denied the title of the appellant.

Consequently, the court below had to go into the question whether the appellant had title or not. If the appellant had no title to the property either a

suit for possession or a suit for partition would not lie and on that ground the sort would have been straightaway dismissed. Only if the appellant

had got title to the property, the form of the prayer in the suit would be relevant. Therefore, the question, as to whether the appellant bad title to

any portion of the suit property or not was basis and fundamental to the suit and a finding on that question was necessary for the disposal of the

suit. Hence, there can be no controversy that the finding given in the earlier proceed and that the appellant had title to a portion of the suit property

was a finding on a vital issue and that finding was necessary for the disposal of the suit itself. If that finding was necessary for the disposal of the suit

and yet that was not incorporated in the decree, would that constitute res judicata or not?

Here again, the only argument of Mr. T.R. Mani is that if that finding is not incorporated in the decree, the decree being one of dismissal of the

suit and the first respondent herein being the only defendant in that suit, he could not have preferred any appeal whatever and therefore that finding

would not constitute res judicata. In support of this Mr. T.R. Mani draws my attention to a Bench decision of this Court in Ramaswami Reddi Vs.

Talaivasal Marudai Reddi and Others, The Bench after referring to a decision of the Privy Council in Midnapur Zamindar Company v. Naresh

Narayan Roy (1921) 48 Cal. 460 (P.C.) proceeded to state.

Here there was no necessity really to find on the question of permanent occupancy set up by the defendant for even if the Court had assumed that

he had no such occupancy right the result would have been the same; a tenancy from year to year would result and that would require a notice to

quit to pat attend to it.

In my opinion, the above observation does not assist the first respondent in the present case. The above observation proceeded on the basis that

the finding was not really necessary for the disposal of the suit. As I have pointed out already, as far as the present case is concerned, a finding on

the title of the first respondent was absolutely was necessary for the disposal of A.S. No. 123 of 1964. Hence the above decision is not of any

assistance whatever to the first respondent herein.

As against this, there is another Bench Judgment of this Court in Muthava Shetti v. Kanthappa Shetti 34 M.L.J. 431 at 435. In that case

Seshagiri Aiyer J., has stated:

In the fourth class, the decision upon the issue is necessary, but unfortunately, the party against whom that decision is given could not appeal

against it as the final decree is in his favour. In such a case it seems to me that the decision on the issue would be res judicata. The proper

procedure where the defendant is affected by a decision on as issue which he has not the opportunity of contesting in appeal I may be as suggested

by Patharam C.J., in Jamaitunnisa v. Latifunnissa 1885 ILR 7 All. 606 that is to say he can ask the court which has given an adverse decision on a

material issue to embody it is the decree so that he may have a right of appeal against such decision. But if he neglects the opportunity and the

decision itself is necessary for the disposal of the case, there seems to be no escape from the bar of res judicata.

I asked Mr. T.R. Mani to bring to my notice any decision which has displaced this decision of Seshagiri Aiyar, J., referred to above and Mr. Mani

was not able to bring to my notice any decision to the contrary effect. Consequently, I hold that the finding against the first respondent in A.S. No.

123 of 1964 would constitute res judicata and thus prevent the first respondent from questioning the title of the appellant in the present

proceedings.

The only other question for consideration is what is, the relief to which the appellant in entitled. As I have pointed out already, the trial Court

passed a preliminary decree in his favour for partition of a plot measuring 80'' east-west and 20'' north-south at the south-western corner of the suit

property. I am of the opinion that the learned trial Judge has erred in holding that the appellant is entitled to have this specific extent allotted to him.

All that the appellant is entitled to is to have the specific extent purchased by him allotted to him if it can be accommodated within the share which

Kuppuawami Naicker was entitled to along with his co-owners in the entirety of the suit property; if the same cannot be accommodated, the

appellant will be entitled to whatever Kuppuswami Naicker was entitled to out of the suit property as between his co-owners. Consequently the

appeal is allowed and the judgment and decree of the learned I Additional Judge, City Civil Court, Madras, are set aside and the decree of the

learned VIII Assistant Judge, City Civil Court, Madras, will stand modified by providing for a preliminary decree for partition of the suit property

and allotment of Kuppuswami Naicker''s share to the appellant herein, to the extent to which the appellant has purchased from Kuppuswamy

Naicker under Ex.A-1. Since the appellant purchased the property in the south-western corner of the suit property on the ground of equity, the

same will be allotted towards the share of Kuppuswami Naicker and therefore to the appellant herein in the final decree proceedings. The parties

will bear their respective costs throughout. No leave.