S. Saroja vs K. Arumugham and Another

A. Varadarajan, J.—The plaintiff, who succeeded in the trial Court but failed in the lower appellate Court, is the appellant. She is the grand-

daughter of one Ponni Mandakkattal and daughter of Subbammal. Subbammal is the sister of the first respondent Arumugam, who is the husband

of the second respondent. Radha. The suit was filed for declaration of the appellant''s title to the suit property, which is a tiled building stated to be

situate on 21/8 cents of land in Survey No. 3030/3-A of Vadassery Village and for recovery of possession thereof from the respondents.

According to the appellant, the suit property belonged originally to her maternal grandmother, Ponni Mandakkattal, and was inherited by

Subbammal on her death and that she inherited the property on the death of Subbammal in 1960. Ponni Mandakkattal was the wife of one

Kolappan.

The defence was that the house property is situate in Survey No. 3144 and not in Survey No. 3030/3-A and belonged to Kolappan, the father

of the first respondent, and that the appellant is not entitled to declaration and possession. The appellant had filed O.S. No. 695 of 1965 in the

District Munsif''s Court, Nagercoil, against the respondents for declaration of her title to the suit property and for possession on the basis that she

had leased the property to the first respondent. Exhibits A-1 and A-2 are the certified copies of the judgment and decree passed in that suit. There

was a decree only declaring the appellant''s title to the suit property and the other relief of possession was denied to the appellant on the ground

that she had not proved the lease pleaded in the plaint in that suit. There was no appeal and the judgment and decree passed in that suit had

become final.

The trial Court, in the present suit, found that in view of the judgment and decree in the prior suit (Exhibits A-1 and A-2) it is not open to the

respondents to question the appellant''s title to the suit property and held that the appellant was in possession of the property within 12 years

before suit in that she was actually living there until her marriage on 11th August, 1960, and decreed the suit as prayed for with costs. But, on

appeal, the learned Subordinate Judge found that there was no bar of res judicata as regards title, that the appellant had failed to prove her title to

the suit property and that the respondents had acquired title to the suit property by adverse possession, on the ground that the first respondent had

been paying tax for the suit property from the year 1950. Relying on the Commissioner''s report, Exhibit B-7, the lower appellate Court found that

a major portion of the suit house is situate in Survey No. 3144 and not in. Survey No. 3030/3-A. In view of his finding regarding title and

possession, the learned Subordinate Judge: allowed the appeal and dismissed the suit with costs.

The learned Subordinate Judge has relied upon the decision of the Privy Council in Midnapur Zamindari Co., Ltd. v. Naresh Namyan Roy 64

Ind.Cas. 231 : 48 I.A. 49 : AIR 1922 P.C. 241, in holding that there is no bar of res judicata in the present case on the question of title and the

appellant has to prove her title once again. That is a case where the entire suit was dismissed and it was not possible for the defendants to file any

appeal. But, in the present case, as already stated, there was no dismissal of the former suit in its entirety, the appellant''s title to the suit property

had been declared and only the other portion of the appellant''s clair, namely possession, had been dismissed. The Learned Counsel for the

respondents concedes that the respondents could have filed an appeal against the decree declaring the appellant''s title to the suit property in the

previous suit. The Learned Counsel for the appellant invited my attention to the decision of a Bench of the Calcutta High Court in Murad Biswas

Vs. Basti Mandal, , where it was found on a reference to the record that the previous suit was one in which the plaintiff had asked for declaration

of his title to the land and khas possession and that the defence was that the defendant was not a tenant holding under the plaintiff but was a co-

sharer. That defence was gone into and ultimately it was found that the plaintiff''s title to the land was made out but, notice not having been served

on the defendant, the suit was not dismissed but a decree was made in the plaintiff''s favour in the following terms:

Ordered that the plaintiff''s alleged title to the land in suit be declared, he cannot recover khas possession of the land but he may sue for settlement

of fair rent and recovery of nasar if he likes.

The learned Judges have observed:

The facts therefore are not that the suit was dismissed on a preliminary point making it unnecessary for the Court to go into the other questions that

arose in the suit but that the questions were decided and made the foundation of a decree declaring the plaintiff''s title, and one of the prayers in the

suit, namely, that for khas possession was refused on the ground that notice had not been served on the defendant.

Referring to the aforesaid decision of the Privy Council, the learned Judges have observed:

This cannot be said of the present case in view of the fact that the plaintiff''s title was declared and it is only one of his prayers, namely, that for

khas possession was refused on the ground that no notice was served. We are of opinion that the Courts below were right in the view that they

took on the question of res judicata.

In view of the fact that the respondents could have filed an appeal against the previous decree declaring the appellant''s title to the suit property,

which is rightly conceded by the Learned Counsel for the respondents, and in view of the fact that the prior suit was not dismissed in full but a

decree for declaration of the appellant''s title to the suit property had been passed in that suit, and having regard to the said decision of the Bench

of the Calcutta High Court, I find that there is a bar of res judicata in this case regarding title in favour of the appellant and that the appellant has to

be held to have already proved her title to the suit property and to have title to the same and is not bound once again to prove her title to the suit

property.

On the question of possession, it is impossible to agree with the view of the learned Subordinate Judge that the respondents had acquired title by

adverse possession to the suit property merely because the first respondent had been paying tax for the property from 1950, notwithstanding the

fact that the appellant was living in the suit property itself until her marriage on 11th August, 1960. The appellant having been in possession of the

property until 11th August, 1960, it could not be stated that the respondents had acquired title to the suit property by adverse possession or that

the appellant was not in possession of the property within 12 years prior to the date of the suit. I agree with the learned District Munsif and find

that the appellant was in possession of the suit property within 12 years of the date of suit.

The second appeal is, therefore, allowed with costs throughout. No leave.