Vaiyapuri Vanniyar vs S. Rangaraju Naidu, And Another

Veeraswami, J.—This second appeal raises the question as to whether the judgment and decree in an earlier litigation constituted, as has been found by both the Courts below, res judicata on a question of title to immoveable properly. The first defendant who failed in both the Courts below is the appellant in this Court. In O.S. No. 85 of 1955, the present plaintiff asked for a declaration of his title to the suit property and for an injunction restraining the present first defendant from interfering with his possession. The Court found title in favour of the plaintiff, but dismissed the suit on the ground that he had not established possession on the date of the suit. While doing so, the Court also directed that each party must bear his costs. The instant suit out of which this second appeal arises was brought by the same plaintiff for possession and mesne profits. The suit was resisted on various grounds denying the plaintiff''s title and disputing the identity of the suit property with what the plaintiff claimed to belong to him. On the question of title, as I said, both the Courts below considered that the finding recorded in the earlier suit operated as res judicata. The lower appellate Court dismissed the appeal of the first defendant on that ground. On behalf of the first defendant it is contended before me that the view of the lower appellate Court that the earlier judgment and decree constituted res judicata on the question of title is erroneous. It is pointed out that since the suit was disposed of in favour of the first defendant, the finding recorded adversely to him would not in the circumstances operate as res judicata. In support of this proposition reliance is placed on Midnapore Zamindari Co. Ltd. v. Naresh Narayan Roy 48 Cal. 460 and Kumarappa Chetti and Others Vs. Muthuvijaya Raghunatha Muthukumara Vanangamudi Valuvatti Thevar (dead) represented by Thangammal Aeeyar, . In the first of the cases Lord Dunedin speaking for the Judicial Committee observed:

Their Lordships do sot consider that this will found an actual plea of res judicata for the defendants, having succeeded on the other plea, and no occasion to go further as to the finding against them......

It does not appear whether In that case the earlier suit was dismissed without costs. But it is clear that it was disposed of in favour of the defendant, but on a factual finding recorded against them on one of the issues. Nevertheless in the opinion of the Judicial Committee the finding did not operate as res judicata between the parties in the subsequent litigation. This was on the ground that the defendants who were successful in the suit had no occasion to appeal against the finding. This view was followed by this Court in Kumarappa Chetti and Others Vs. Muthuvijaya Raghunatha Muthukumara Vanangamudi Valuvatti Thevar (dead) represented by Thangammal Aeeyar,

On the other hand, the contention for the respondent-plaintiff is that since the suit was dismissed but with no costs to the defendants, they had an occasion to agitate the question of title by filing an appeal against that decree denying costs. But it is not clear on what ground the costs were disallowed in the earlier suit. Kotayya v. Subbayya 45 L.W. 53 is a case where in the earlier suit which was dismissed it was clearly stated that costs to the defendants were disallowed because they have failed on the question of title. Apart from that point of distinction in that case, the defendants had actually appealed against the decree, but the appellate Court dismissed the appeal with costs concurring with the trial Court on the question of title. It was on those circumstances this Court considered in that case that the finding in the lower Court on the question of title was clearly res judicata. In Paramal Bhatti and Others Vs. Narayanan Nambudripad and Others, the very point argued for the respondent appears to have been urged, but negatived. There also, in the earlier suit the direction was the parties should bear their own costs in the circumstances of the case and the adverse finding was not made the ground for depriving the defendants of their cost, as in this case. Dealing with the point Venkatasubba Rao, J., said--

The distinction is important for the principle of the decision in Veerasami Mudali v. Palaniayappan 46 M.L.J. 515 = 19 L.W. 513 is that the defendants could have attacked the adverse ending by filing an appeal against the order as to the costs. But in this case that requisite is wanting, the adverse finding and the order regarding the costs not being related to each other as cause and effect.

The learned Judge therefore held that the finding in the previous suit did not operate as res judicata in the later action.

It seems to me that this decision has direct application to the facts of this case.

Applying the principle of Kumarappa Chetti and Others Vs. Muthuvijaya Raghunatha Muthukumara Vanangamudi Valuvatti Thevar (dead) represented by Thangammal Aeeyar, and Paramal Bhatti and Others Vs. Narayanan Nambudripad and Others, I hold, differing from the Courts below, that the finding in O.S. No. 85 of 1955 on the question of title does not constitute res judicata as between the plaintiff and the first defendant in the present litigation. A further point was made for the respondent that the principle of these cases will not be applicable since in the earlier litigation the finding as to title was incorporated in the decree itself. But I fail to see the force of the point. The fact of the incorporation of the finding in the decree, in my opinion, makes no difference to the principle.

On behalf of the appellant arguments were addressed to me on the question of title and the identity and it was pointed out on behalf of the respondent that the question of identity was not the subject matter of a ground in the memorandum of first appeal, though it found a place in the written statement. In the view I have taken on the question of res judicata, the appeal should be remitted to the lower appellate Court for fresh disposal and in view of this, I do not consider it necessary for myself to decide the question of title and identity. The second appeal is allowed. The judgment and decree of the lower appellate Court are set aside, and the appeal is remitted to that Court for fresh disposal in accordance with the observations contained in this judgment and in accordance with law.

In the circumstances, the court-fee paid on the memorandum of second appeal will not be re-funded. Costs of the appeal to abide the result and be provided for by the lower appellate Court. No leave.