V. Velayudha Gramani vs Dharmalingam and 15 others

S.S. Subramani, J.—Plaintiff in O.S. No. 5325 of 1974, on the file of VI Assistant Judge, City Civil Court, Madras, is the appellant herein.

Appellant filed the said suit to declare his title to the schedule property and for recovery of possession from the defendants, and also for a

permanent injunction restraining the defendants from committing any act of waste and also from putting up any construction therein, and also for a

direction to the defendants to pay to the plaintiff mesne profits at the rate of Rs. 300/- per mensem, on the following allegations.

Plaintiff alleges that he purchased the schedule mentioned property on 29-03-1973 from its previous owner Balasubramaniam, who is the fourth

defendant in the suit. Prior to the purchase of the plot by the appellant in 1973, the fourth defendant, vendor of plaintiff, and his predecessors were

in possession and enjoyment of the property. It is alleged that his vendor, the 4th defendant, at the time of sale in favour of plaintiff, represented

that the first defendant was occupying the properly prior to 1963 as his tenant, that in or about 1963, as the first defendant purchased three

grounds of land adjacent to the suit property, from the fourth defendant, he vacated the land removing the superstructures put up by him therein.

The fourth defendant further represented to him that again, in or about June 1964, the first defendant trespassed on the suit land and put up a hut

and is residing therein. It is said that the fourth defendant undertook to get the first defendant evicted from the suit property at the time of purchase

of the suit plot by plaintiff, and first defendant also promised to vacate the suit land and deliver the same to the plaintiff after removing the structures

put up by him on the land including the one occupied by the second defendant. But the first defendant failed to deliver the suit land to plaintiff

inspite of repeated demands. Plaintiff sent a lawyer''s notice on 07-02-1974 to the first defendant, calling upon him to deliver possession of the suit

property. The first defendant sent a reply on 26-02-1974, denying the title of the plaintiff, and setting up title in himself to the suit land. It is averred

that when plaintiff was contemplating legal action against the defendants, they, without the knowledge and consent of plaintiff, on 17-07-1974

started putting up permanent constructions. Inspite of objections raised by plaintiff, the first defendant has put up construction, and after

construction, he has put the second defendant in possession as a tenant under him. He further averred that sometime in December 1973, first

defendant permitted defendants 3 and 5 to occupy a portion of the suit plot, and they have put up huts. According to plaintiff, defendants 1 to 3

and 5 have no manner of title, right or interest over the suit land and have, therefore, no right to put up any construction or structure on the land of

the plaintiff. It was on the above allegations, the suit was filed. It was further said that the fourth defendant has been impleaded since he is bound by

the covenant to protect the title of the plaintiff.

In the written statement filed by the third defendant, he contended that he is the son of the 5th defendant, and that he adopts the case of his

mother. He says that his mother and her predecessors have been in enjoyment of the hut for the last three generations, and she (fifth defendant)

was in possession as lessee of the entire area.

In the written statement filed by 5th defendant, she contended that the plaintiff has no right, title or interest over any portion of the properly, and

the sale deed taken by him from the 4th defendant is invalid. According to her, she is in possession of the entire 23 acres, which admittedly belongs

to one Srirangammal, the same having been devolved on her (Srirangammal) after the death of her husband Srinivasaraghavan. An attempt was

made to get possession of the property from Srirangammal, and litigations started, and finally, in Second Appeal No. 61 of 1960, before this

Court, the matter was settled, whereby, out of the entire 23 acres of land, the owners were directed to convey an area of 200 grounds in two

different blocks, to the fifth defendant or her nominee. It is said that the plaintiff is also aware of the compromise. Later, the fifth defendant

appointed the fourth defendant as her nominee, to purchase the property on her behalf, and later it was agreed that she must be given an area of 6

grounds of land of her choice and also another sum of Rs. 10,000/-. When the fourth defendant tried to cheat her, she had to resort to litigations,

and the present sale deed was executed after the fourth defendant was permanently restrained from executing any sale deed without carving out

her six grounds. There was an obligation on the part of the fourth defendant to convey six grounds of her choice free of cost, and the fourth

defendant failed to do so. It is furl her said that the area where the property was purchased was in her possession, and in view of the obligation on

the part of the fourth defendant, she is not bound to surrender any portion of the property. She prayed for dismissal of the suit.

4th defendant died and his legal representatives have been impleaded.

Trial Court, as per judgment dated 10.08.1981, dismissed the suit. The trial Court held that the sale deed in favour of plaintiff is not valid.

Before the sale deed was executed by 4th defendant, the 5th defendant has already obtained a decree as evidenced by Ex A-19, restraining the

fourth defendant from executing any document. Even though an argument was advanced by learned counsel for the plaintiff that the said decree will

not bind the plaintiff, trial court held that no attempt was made to substantiate the same. It was further found that the allegations in the plaint that the

first defendant vacated the premises and later trespassed, are all cock and bull story, and his possession started even before 1957. It further found

that the 5th defendant has been in possession of the property as a lessee of the original owner, Srinivasa Iyengar and, therefore, the allegation that

she is a person claiming under the first defendant is also not true. Both on the facts of title and possession, the findings were against the plaintiff.

The suit was dismissed.

Aggrieved by the Judgment, plaintiff preferred A.S. No. 32 of 1981 without any success. The concurrent judgment is challenged in this Second

Appeal.

At the time of admission of the Second Appeal, the following substantial questions of law were raised for consideration:-

1) Whether the ex parte decree dated 4-10-1979 obtained by 3rd respondent Subatriammal in O.S.3644 of 1972 in City Civil Court, Madras,

suppressing the money decree dated 30-03-1968 obtained by her in O.S. No. 4620 of 1966, City Civil Court, Madras against the father of the

appellant was a nullity and unenforceable against the appellant.?

2) Whether, in view of the judgment Ex A-19 in O.S. No. 4620 of 1966, on the file of the City Civil Court, Madras, granting a money decree in

favour of the third respondent Subatriammal in lieu of her rights and claims under the agreement dated 04-05-1963. the subsequent suit O.S. No.

3644 of 1972 Exs.B-4 and B-5 filed by the third respondent against Balasubramanian was not maintainable and was barred by principles of res

judicata?

3) Whether, in view of the declaratory decree in O.S. No. 3644 of 1972, Ex B-5 being inexecutable, the decree for injunction conveys title to the

suit property to the appellant?

4) Whether Ex B-1, an unstamped and unregistered document, is inadmissible in law for the collateral purpose of proving the alleged possession of

the first defendant and his vendor?

5) In the absence of any evidence to show possession of the said property with the first defendant, whether the first defendant has prescribed title

by adverse possession in respect of a portion of the suit property?

6) Whether the appellant who purchased the suit property under the registered sale deed Ex.A-1 dated 29-3-1974 without any notice of the

decree in O.S. 3644 of 1972 is a bona fide purchaser for value without notice of the defects in the title of his vendor?

Questions of law Nos. 1 to 3 and 6 could be considered together. Question Nos. 4 and 5 will arise for consideration only if the earlier

questions, namely, question Nos. 1 to 3 and 6 are found in favour of the appellant 11. It is common case of all the parties that the plaint schedule

property is a portion of 23 and odd acres of land in Survey Nos. 04 and 67, near Lattice Bridge Road, Adyar. It belonged to one Srinivasa

Iyengar. Even while he was alive, the fifth defendant in the suit was the lessee and she was known only as lessee (i.e., Kuthagaikkarammal).

It is not disputed that she filed a suit as O.S. No. 2552 of 1956 in City Civil Court, Madras, for a declaration that she was the tenant in respect

of the vacant site owned by Srinivasa Iyengar and she was entitled to the benefits of City Tenants Protection Act. At the lime when the suit was

filed, Srinivasa Iyengar was no more, and his widow and children were impleaded, and the dispute was settled in Second Appeal No. 61 of 1960.

As per the settlement, nearly 200 grounds of land were ordered to be sold over to the filth defendant of her nominee. At that time, the fourth

defendant herein entered into a registered agreement under which he was authorised as a nominee of the fifth defendant to purchase the land from

the landowner. There was one condition in the agreement, namely, that the fourth defendant should convey six grounds of land according to the

choice of the fifth defendant and should also pay a sum of Rs. 10,000/-. It is not disputed that the schedule property is a portion of the land so

purchased by the fourth defendant from the owner pursuant to the compromise in the suit and it was taken by him as nominee of the fifth defendant.

As per the agreement between defendants 4 and 5, fourth defendant was to convey six grounds according to the choice of the fifth defendant

and also a sum of Rs. 10,000/-. These two obligations were independent. When there was a default in payment, fifth defendant filed a suit as O.S.

No. 4620 of 1966, which was seriously contested by the fourth defendant. But, inspite of the same, the suit was decreed in part, for a sum of Rs.

6,200/-. That decree has become final.

When fourth defendant made serious attempts to sell all the properties even without demarcating the six grounds for the fifth defendant, she

filed another suit as O.S. No. 3644 of 1972, for a declaration that the fourth defendant has no right to sell or alienate any portion of the remaining

land including the land in his possession, until he conveys six grounds as per the agreement between them, and an injunction was also sought in that

case. Fourth defendant did not enter appearance, and the suit was automatically decreed, on 4-10-1972. It is out of this properly, plaintiff took a

sale deed from 4th defendant as evidenced by Ex.A-1 dated 29-3-1974. It is on the basis of the injunction decree, the 5th defendant disputes the

validity of the sale deed in favour of the plaintiff. Both the Courts below have concurrently found that the sale deed in favour of the plaintiff was in

violation of the decree for injunction and, therefore, invalid.

Learned counsel for the appellant contended that Ex.B-4 (judgment) and B-5 (decree) are ex parte, and a decree for induction will not run

with the land, and title could be conveyed in spite of the decree. He further contended that as a derivative title-holder, 4th respondent can

challenge the validity of the judgment and decree, namely, Ex.B-4 and B-5. The argument is that even before Exs.B-4 and B-5, the fifth defendant

had already instituted a suit as O.S. No. 3644 of 1972, on the allegation that there was breach of contract and she has received compensation for

that breach. Once she has already received compensation, the agreement has ceased to have any effect and the suit on the same agreement is

really a fraud on Court. It is further contended that the decree in O.S. No. 3644 of 1972, marked as Ex.B-5 in the present suit was not brought to

the notice of the Court, and if the same has been filed as an exhibit, the decree would not have been passed which prevented the 4th defendant

from alienating the property. It was further alleged that once she has availed the remedy as one for damages, she cannot thereafter file a suit for

prohibitory injunction, especially when she has not availed or specified the area and expressed her readiness to perform the agreement. It is only a

negative relief sought for in Exs.B-4 and B-5. From the non-filing of a suit for specific performance, it must be deemed that she has waived her

right to get a sale deed in her favour. He also contended that Exs.B-4 and B-5 are hit by the provision of Order 2, Rule 2 , C.P.C. She is also

barred by constructive res judicata. Further, Exs.B-4 and B-5 are nullity, having been obtained by practising frauds on Court. For the said

purpose, learned counsel relied on the decision reported in 1994 T.L.NJ.30 (S.C.) S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath

(dead) by L.Rs. and others, and also the decision reported in Vellappan Vs. Peter Thomas, He also relied on a further decision, namely, the one

reported in Khirod Chandra Mohanty Vs. Banshidhar Khatua and Others, I do not think, any of these submissions could be accepted.

Plaintiff has come to this Court alleging that he has got a valid title to the properly. It is for him to prove that he has obtained valid title. He had

further averred that the first defendant is a purchaser and that was in 1963, and defendants 2, 3 and 5 are in possession of portions of the properly

under the first defendant.

If this story as alleged in the plaint is found against and if the fourth defendant was also hound by certain obligations, the sale deed taken by the

plaintiff also will be subject to those obligations.

Admittedly, fifth defendant was a tenant under the predecessor of the fourth defendant, late Srinivasan Iyengar. It cannot be disputed that there

was litigation between 5th defendant and the owners. The owners were directed to sell nearly 200 grounds of land to the fifth defendant for certain

consideration. The sale deed had to be taken either in the name of the fifth defendant or in the name of her nominee. It is also not disputed that the

fifth defendant was in possession of the property, and she was residing in the very same house, as a tenant. The claim put forward is that she is

entitled to the benefits of the City Tenants Protection Act, i.e., lessee in possession of a vacant land having put up a construction. Nobody has a

case that the fifth defendant was evicted by any person, or that she surrendered possession of the building. So, the allegation in the plaint that the

fifth defendant is claiming under the first defendant is a story invented for the purpose of this case.

Fifth defendant was not in a position to pay the entire consideration to the owner. She entered into an agreement with the fourth defendant,

who is a builder. Consideration for the agreement was that the fourth defendant will allot six grounds according to the choice of the fifth defendant

free of cost, and in addition to the same, pay certain amount to her. As per the original agreement, the fourth defendant was to pay a sum of Rs.

60,000/-, out of which Rs. 50,000/- was already paid. Rs. 10,000/- was retained by the fourth defendant, ''which was to be returned to the fifth

defendant on certain conditions. There were various huts in the property, and the arrangement was that the fifth defendant must co-operate with the

fourth defendant in evicting these hutment dwellers. The fifth defendant succeeded only partially. Therefore, plaintiff did not pay the amount which

he had retained. She filed a suit for recovery of money, i.e., for Rs. 10,000/-. As per Ex.A-19 judgment, it was found that there was default on

both sides and, therefore, the fifth defendant is entitled to recover only a sum of Rs. 6,300/-, for which a decree was granted.

Under the agreement, the fourth defendant was also obliged to carve out six grounds of land for the fifth defendant. Without respecting that

obligation, he attempted to sell all the properties without reserving any portion to the fifth defendant. At that time, the fifth defendant was afraid of

being dispossessed by the purchaser and so she filed a suit. Exs.B-4 and B-5 are respectively the judgment and decree in that case. In that suit, the

fifth defendant pointed out that without carving out the grounds to be given to the fifth defendant as per the agreement, fourth defendant cannot sell

the entire property. An ex pane decree was passed granting all the relief''s sought for in the plaint.

Learned counsel for the appellant submitted that the second suit filed by the fifth defendant was not maintainable for the following reasons:- (1)

It is a fraudulent decree, and the earlier decree was not brought to the notice of the Court; (2) Such a claim is barred under O.2, R. 2, C.P.C; (3)

In Exs.B-4 and B-5, the fifth defendant did not ask for any positive relief, nor did she seek for Specific Performance of the agreement. Her right to

specific performance must be deemed to have been waived; and (4) The grant of injunction is not a covenant running along with the land and

therefore, title will pass.

The question whether Exs.B-4 and B-5 judgment and decree are hit by the principle under O.. 2, R. 2, C.P.C, is one which ought to have

been raised by the fourth defendant in that proceeding. Having failed to contest the suit covered by Ex.B-4 judgment, plaintiff, who is claiming

under the fourth defendant cannot challenge that matter in this proceeding. Prima facie, this contention also cannot be accepted, since, as per the

terms of the agreement between fifth defendant and fourth defendant, both are two different obligations, though arising under the same contract.

Both the suits are on the basis of two different causes of action, for which separate evidence will have to be let in. There is no identity of cause of

action, as was held in the decision reported in AIR 1949 78 (Privy Council) In that judgment, it was held thus:-

The correct test in cases failing under Or.2, R. 2, is whether the claim in the new suit is in fact founded upon a cause of action distinct from that

which was the foundation for the former suit.

The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment.

If the evidence to support the two claims is different, then the causes of actions are also different.

(Emphasis Supplied)

Therefore, that contention will have to be rejected.

The question whether Ex.B-1 and B-5 could be ignored by the appellant as having been obtained by means of frauds on Court, also will have

to be analysed. It is not disputed that the fifth defendant had a right for six grounds of land, and the fourth defendant also agreed to convey the

same to her. He became the nominee of the fifth defendant only because of this arrangement. Really the fourth defendant became a trustee so far as

these six grounds are concerned, and he was bound to fulfill that obligation. He was entitled to sell only the remaining portion. When the fourth

defendant tried to cheat her, she had to institute a suit to prevent him from selling the property without recognising her right. By filing a second suit,

she only reminding the fourth defendant of his obligations. The contention that by filing the earlier suit Ex.A-19, the contract has come to an end

and the fifth defendant was satisfied with the damages, which was awarded by Court, cannot be accepted. I have already said that these two

obligations are independent, though arising out of the same contract. The same could be separately enforced. Even if the fourth defendant did not

pay the amount which he had agreed to pay, and at the same time, was prepared to earmark six grounds of land, Ex.A-19 suit would have been

maintainable. Likewise, if the agreed amount had not been paid, and the six grounds agreed to be carved out, had not been separately earmarked,

- two different causes of action arises, not depending on one another. The contention that in view of the breach of contract, plaintiff obtained a

decree for Rs. 66,300/- is not correct. The fourth defendant was bound to pay Rs. 6,000/-, which he had already retained, and which was

payable to the fifth defendant. It is only that amount, she claimed. To that extent, the breach contemplated in the two suits was different, and the

non-filing of the judgment and decree Ex.A-19 in the subsequent suit covered by Exs.B-4 and B-5 has no relevance, and by no stretch of

imagination, frauds could be inferred. In this connection, it may be noted that case of frauds will have to be pleaded and proved. Nowhere in the

plaint, the plaintiff makes mention of Exs.A-19. B-4 and B-5.

The further contention that it is only a negative relief, and that there is a waiver of specific performance are all contentions which the fourth

defendant ought to have taken in Ex.B-4 suit as a ground to non-suit the fifth defendant. It is well-settled that an ex parte decree also will constitute

res judicata regarding the points decided.

In Mulla''s ''Code of Civil Procedure'' 1996 Edition, at page 109, the learned author has said thus:-

Exparte decree operate to render the matter decided res judicata, and the defendant''s failure to appear will not deprive the plaintiff of the full

benefit of his decree. But in the case of a suit in which a decree is passed ex parte (see O.9, R. 6, Code of 1882, S. 100), the only matter that can

be ""directly and substantially"" in issue is the matter in respect of which relief has been claimed by the plaintiff in the plaint.

At page 110, the learned Author has further said thus:-

The reason why even an ex parte judgment becomes res judicata is, that such a judgment is pronounced after examining the evidence needed to

support the factual allegations in the plaint and after the Court is satisfied that the case put forth in the plaint has been substantiated.

No argument was put forward by learned counsel that the Court which passed the ex parte decree was not having the jurisdiction to decide the

case. It had jurisdiction over the parties and also the property scheduled in the plaint. The suit is also of civil nature, and there is no bar of

jurisdiction in any other law. If that be so, it is too late on the part of the appellant to contend that de hors Exs.B-4 and B-5, and ignoring the same,

he can obtain title.

It is contended by learned counsel that even if there is a decree for permanent injunction, the same is not a covenant running with the land and,

therefore, title will pass. The said argument deserves to be condemned. There is a decree for permanent prohibitory injunction restraining the fourth

defendant from executing a sale deed without earmarking the area to be given to the fifth defendant. Admittedly, the 4th defendant, has not

earmarked the area. Having purchased the property after the decree plaintiff is not entitled to put forward a claim on the basis of disobedience or

command of Court. A party is bound by the order of Court. It is well-known that disobedience of an order of Court provides the foundation for

punishment. It can never be the basis for claim. An act done in violation of decree for injunction is unlawful. The sale deed taken by plaintiff can be

deemed to have been ineffectual, and the Court cannot recognise the consequences of an unlawful act as the basis for a valid claim.

If the Court recognises the deed, it will amount to ignoring its own decree, and the fifth defendant''s right to retain the property will also be

taken away. That means, the solemn agreement between the defendants 4 and 5 also will have to be thrown to winds. Confidence reposed in the

fourth defendant will have to be ignored. The Court cannot be a party to such a transaction. In view of the above findings, I hold that the finding of

the Courts below that Ex.A-1 sale deed is not valid is only to be confirmed. Plaintiff is not entitled to have his title declared. Once it is found that

the plaintiff has no title, the question whether the first defendant or the fifth defendant has prescribed title by adverse position need not be

considered and, therefore, Question Nos. 4 and 5 are answered. On Question Nos. 2, 3 and 6, I hold against the appellant. Consequently, the

Second Appeal is dismissed with costs.