Yakub Rowther vs Poongavanammal and Others

Bellie, J.—The plaintiff is the appellant. He filed a suit for declaration and injunction against the seven defendants on the basis of the sale

deed Ex.A-1 executed by second defendant on 24.4.1967. The same property was sold by the second defendant along with defendants 3, 4 and

5 under Ex.B-10 sale deed dated 2.3.1978 in favour of first defendant. According to the plaintiff on the basis of Ex.B-10 the defendants 1, 6 and

7 interfered with the possession and enjoyment of the plaintiff. Therefore the suit.

Defendants 1, 6 and 7 are contesting the suit while other defendants remained ex parte.

It is contended that one Sadayan Asari filed O.S.No.290 of 1967 against the second defendant for recovery of amount due under a pronote

dated 9.10.1964. In that suit Sadayan Asari got the suit property attached before judgment on 27.6.1967. The present plaintiff who had

purchased the property earlier on 24.4.1967 filed a claim petition I.A.No.1972 of 1968 for raising attachment by an order dated 8.8.1970 that

application was dismissed on the ground that another suit O.S.No.577 of 1967 filed by the present plaintiff against two persons in respect of the

same properties for declaration and injunction was dismissed. The present plaintiff filed O.S.No.656 of 1971 against Sadayan Asari and

Pachaiyammal-second defendant in the District Munsif Court, Kallakurichi under Order 21, Rule 63, C.P.C. for setting aside the summary order in

the claim petition. This suit was decreed on 30.4.1973 on the ground that the judgment and decree in O.S.No.577 of 1967 were reversed in

A.S.No.181 of 1969 on 28.8.1970 on the file of Sub Court, Cuddalore, Sadayan Asari filed AS.No.447 of 1973 in the Sub Court, Cuddalore

against the judgment and decree in O.S.No. 656 of 1971 against the present plaintiff and also Pachaiyammal the second defendant. The appeal

was allowed on 4.11.1974 and the suit was dismissed on the ground, that, (i) the sale in favour of the present plaintiff by Pachaiyammal was

intended to defeat and delay the creditors and hence it was hit by Section 53 of the Transfer of Property Act; and (ii) Pachaiyammal was a minor

on the date of sale and therefore the sale was invalid. As against this judgment no second appeal was preferred.

While so the fourth defendant in the present suit filed O.S.No.113 of 1975 against the present plaintiff, his vendor-second defendant

Pachaiyammal and also her sisters-defendants 3 and 5, for partition of her 1/4th share in the very same property on the ground that the property

belonged to her father Doraisamy Asari who died leaving behind three daughters and a son. The suit was contested on the ground that the fourth

defendant was not the daughter of Doraisamy Asari and in any case he died before 1956 and therefore she could not claim any share. The plaintiff

as first defendant in that suit also contended that he was the absolute owner of the property and Pachaiyammal had no right. The trial court held

that the plaintiff therein i.e., Vengachi alias Veerammal was not the daughter of Doraisamy Asari and also she did not prove that Doraisamy Asari

died after 1956. The court gave further finding that the second defendant herein-Pachaiyammal alone was the owner of the property in view of the

judgment in appeal A.S. No. 447 of 1973. The fourth defendant filed an appeal A.S.No.46 of 1978 before the Sub Court. Cuddalore. In that

appeal the present plaintiff i.e., the first defendant in that case also filed a cross objection against the finding that Pachaiyammal was entitled to the

property. The appellate court concurred with the finding of the trial court and dismissed the appeal and also dismissed the cross objection on the

ground that A.S.No.447 of 1973 operates as res judicata. No further appeal was filed. On these grounds the defendants prayed for dismissal of

the suit.

The trial court held that the judgment in A.S.No.447 of 1973 and the judgment A.S.No.46 of 1978do not operate as res judicata as contended

by the defendants. If further held that the second defendant Pachaiyammal was a major on the date of the sale deed in favour of the plaintiff and the

plaintiff was also in possession of the property on the date of the suit. Therefore the suit was decreed as prayed for. The contesting defendants 1,6

and 7 filed A.S.No.120 of 1982 in the Sub Court, Cuddalore and the Court gave a finding to the effect that the said two judgments in the earlier

proceedings operate as res judicata and therefore it allowed the appeal and dismissed the suit. As against this the present second appeal is

preferred.

The second appeal earlier came up before Mohan, J. (as he then was). The main point that arose for consideration of the learned Judge was

whether the present suit is barred by the principle of res judicata in view of the decisions in A.S.No.447 of 1973 and A.S.No.46 of 1978. In

support of the contention of the appellant-plaintiff that the suit is not barred by res judicata a Full Bench decision of this Court in Kandadai

Narasimhachariar Vs. Raghava Padayachi, , anda judgment of the Supreme Court in Mangru Mahto and Others Vs. Shri Thakur Taraknathji

Tarakeshwar Math and Others, , were cited, while on the side of the respondents-defendants a Division Bench ruling of this Court in

BandipadaRamireddyv. Tagaran Bichalu (1952)1 M.L.J. 475, was relied on.

While it was argued by the appellant-plaintiff that the decision in A.S.No.447 of 1973 which was rendered in a claim suit under Order 21, Rule

63, C.P.C. will not operate as res judicata, the opposite side contended that it will operate as res judicata. In the Division Bench decision in

Bandipada Ramireddy v. Tagaran Bichalu (1952)1 M.LJ. 475, it has been clearly held that a decision regarding the title to the property in dispute

in a claim suit filed under Order 21, Rule 63, C.P.C. where the claimant and judgment-debtor were parties as co-defendants would operate as res

judicata in a subsequent suit between the claimant and the representatives in interest of the judgment-debtor where the title of the same property is

in dispute if the three requisite conditions laid down by the Privy Council in Mangru v. Tamkeshwar Nath (1931) 61 M.L.J. 196, for applicability

of the rule of res judicata as between co-defendants are satisfied. The requisite conditions are, (i) there must be a conflict of interests between the

defendants concerned, (ii) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims, and (iii) the question between

the defendants must have been finally decided.

From this principle laid down it goes without saying that a decision rendered in a claim suit filed under Order 21, Rule 63, where the claimant is

plaintiff and the judgment-debtor is defendant or one of the defendants that decision will operate as res judicata if the requisite conditions laid down

in See.11, C.P.C., viz., the subject-matter of the suits and the issue involved for decision being the same are present. In this Division Bench

decision an observation of the Full Bench in Kandadai Narasimhachariar Vs. Raghava Padayachi, , has been referred to and held that the said

observation will not land itself to the interpretation that in no case will the decision be given in a suit under Order 21, Rule 63 with reference to title

to the property would operate as res judicata in a subsequent suit. In other words according to the Division Bench the Full Bench decision is not to

the effect that the decision rendered in a suit filed under Order 21, Rule 63 will not operate as res judicata even if the parties, the subject-matter

and issues involved for decision in the two suits are same.

In the decision of the Supreme Court in Mangru Mahto and Others Vs. Shri Thakur Taraknathji Tarakeshwar Math and Others, , the point

under consideration was whether an order passed on petition filed under Order 21, Rule 58 would operate as res judicata in a subsequent suit.

While deciding this point the Supreme Court referred to with approval the decision in the Full Bench in Kandadai Narasimhachariar Vs. Raghava

Padayachi, , Mohan, J. Expressing the view that the said observation in the Division Bench decision in Bandipada Ramireddy v. Tagaran Bichalu

(1952) 1 M.L.J. 475, does not seem to be in accordance with the ruling of the Full Bench in the light of the confirmation of it by the Supreme

Court and this is an important question to be decided, wanted the matter to be referred to a Full Bench.

The Full Bench to which the matter was referred to in the decision reported in Yakub Rowther v. Poongavanammal (1990) 1 L. W. 444, held,

as seen from paragraph 7 of the Judgment, that the Supreme Court decision in Mangru Mahto and Others Vs. Shri Thakur Taraknathji

Tarakeshwar Math and Others, , was rendered with regard to the implications of an unsuccessful claimant (who filed a petition under Order 21,

Rule 58, C.P.C. and not filed a suit under Order 21, Rule 63 and the approval of the Supreme Court of the decision of the Full Bench in Kandadai

Narasimhachariar Vs. Raghava Padayachi, , would only be understood as confining to the said aspect alone i.e., the appication of an order passed

on a petition filed under Order 21, Rule 58 without taking the matter further by way of suit. The Full Bench further held that the decision of the

Division Bench in Bandipada Ramireddy v. Tagaran Bichalu (1952) 1 M.L.J. 475, was rendered in a different context, by meaning that in the case

in the Division Bench decision a claim suit under Order 21, Rule 63 has been filed. So holding the Full Bench said that whether to a particular case

a decision rendered under Order 21, Rule 63 will operate as res judicata will depend upon the scope of the controversy in that case i.e, as to

whether the subject matter of the suit in both the suits is the same and the parties are the same and issue involved is the same. So holding the Full

Bench referred the matter back to the single judge to dispose of the appeal. This is how the matter is now before me.

From the above findings of the Full Bench in Yakub Rowther v. Poongavanammal and Ors. (1990) 1 L.W. 444, it is clear that a decision

rendered in a claim suit filed under Order 21 Rule 63 will operate as res judicata as held by the Division Bench in Bandipada Ramireddy v.

Tagaran Bichalu (1952) 1 M.LJ. 475, if the subject matter of the suits is the same and the parties are the same and issues involved for decision are

the same. So what we have to decide is, for the decision in A.S.No.447 of 1981 to operate as res judicata in the present suit whether the parties in

both the suits are the same and the issues involved are the same as laid down u/s 11, C.P.C. It is not in dispute that the parties in both the suits are

same and the subject-matter is the same and the issues involved is also the same. This being the case it is obvious that the decision in A.S.No.447

of 1981 will operate as res judicata in the present suit. The decision in the cross objections filed by the plaintiff herein in A.S.No.46 of 1978 which

was based on the decision in AS.No.447 of 1973 that decision i.e., the decision in the cross-objections in A.S.No.46 of 1978 also would operate

as res judicata. Therefore the judgment of the first appellate Court has to be upheld as correct.

The result is, the appeal is dismissed, but considering the circumstances of the case there will be no order as to costs.