IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 2.8.2010 Coram: THE HONOURABLE MR.JUSTICE M.JAICHANDREN S.A.No.607 of 2007 Jambukumar .. Appellant/Plaintiff vs. Uzhaikkuam Makkal Nala Arakkattalai, by its Managing Trustee P.R.Memorail No.112, Vaithirama Street T.Nagar, Chennai .. Respondent/Defendant The second appeal has been filed against the judgment and decree, dated 31.3.2006, made in A.S.No.57 of 2005, on the file of the II Additional Subordinate Court, Cuddalore, confirming the judgment and decree, dated 27.6.2005, made in O.S.No.57 of 2003, on the file of the Principal District Munsif Court, Cuddalore. For Appellant : Mr.R.Gururaj For Respondent : Mr.T.V.Krishnamachari J U D G E M E N T This second appeal has been filed against the judgment and decree, dated 31.3.2006, made in A.S.No.57 of 2005, on the file of the II Additional Subordinate Court, Cuddalore, confirming the judgment and decree, dated 27.6.2005, made in O.S.No.57 of 2003, on the file of the Principal District Munsif Court, Cuddalore. 2. The plaintiff in the suit, in O.S.No.57 of 2003, is the appellant in the present second appeal. The defendant in the said suit is the respondent herein. 3. The plaintiff had filed the suit praying for a decree restraining the defendant, its men, agents and others claiming under the defendant, by way of a permanent injunction from, in any manner, interfering with the plaintiff’s peaceful possession and enjoyment of the suit B schedule property and for costs. https://hcservices.ecourts.gov.in/hcservices/ 4. The plaintiff had stated that the suit A schedule property is the ancestral property belonging to the plaintiff and his family, for more than a century. After the partition, that had taken place in the family, the plaintiff’s father had got the suit A schedule property and other properties, as his share. After the plaintiff’s father had died, the plaintiff and his elder brother were enjoying the joint family properties. Since, they could not arrive at an amicable division of the properties, the plaintiff had filed a suit, in O.S.No.274 of 1998, on the file of the Subordinate Court, Cuddalore, for partition and for separate possession, including the suit A schedule property. The suit had ended, on 24.11.1998, in a compromise between the plaintiff and his brother in which the suit A schedule property had been allotted to the plaintiff’s share. Thereafter, the plaintiff had become the absolute owner of the suit property and had prescribed title by adverse possession as well. 5. It had also been stated that the plaintiff’s house is situated in a portion of the property on the eastern side of the suit T.S.No.1807 and T.S.No.1808, bearing door No.27. There are two sheds covering T.S.Nos.1807 and 1806, which had been rented out by the plaintiff to R.V.S. retreading company and the remaining portion is vacant. 6. It had also been stated that the plaintiff alone is entitled to the suit A schedule property and that he is in possession of the same. One prabhavathy and the communist party of India had together filed a suit, in O.S.No.437 of 1995, against the plaintiff, claiming title and by putting forward an agreement of sale in favour of the communist party of India. 7. It had also been stated that the plaintiff had contested the suit filed by one Prabhavathi and the Communist Party of India, and the suit had been dismissed for default. An Interlocutory Application, in I.A.No.1820 of 2006, had been filed to restore the suit. The suit had been restored, on 11.4.1997. However, the said suit had been dismissed for default, once again, on 20.10.1997. An interlocutory application, in I.A.No.2090 of 1997, had been filed, under Order 9 Rule 9 of the Civil Procedure Code, 1908, to restore the suit. However, the interlocutory application had been dismissed, on merits, on 23.6.1999. In the meantime, the defendant had purchased the property by means of a registered sale deed, dated 25.5.1998, from Prabhavathy and others. 8. It had also been stated that the plaintiff had no interest in respect of the property, in T.S.No.1808. The defendant is in possession of the said property. However, the defendant is not in possession of any portion of the property, in T.S.No.1807. The purchase of the property by the defendant, from Prabhavathy and others, would not entitle the defendant to claim title in respect of the said property, as the purchase of the property is hit by the https://hcservices.ecourts.gov.in/hcservices/ principle of lis pendens. 9. It has also been stated that the suit, in O.S.No.437 of 1995, having been dismissed, and the application made under Order 9 Rule 9 of the Civil Procedure Code, 1908, also having been dismissed, the claim being made by the defendant is barred by the principle of Res Judicata, as well as under the provisions of Order 9 Rule 9 of the Civil Procedure Code, 1908. The defendant is barred, as well as estopped from denying the plaintiff's title. However, the defendant is attempting to disturb the plaintiff's possession in respect of the western half, shown as B schedule property. In such circumstances, the plaintiff had preferred the present suit, in O.S.No.57 of 2003. 10. In the written statement filed on behalf of the defendant, the averments and allegations made by the plaintiff had been denied. The description of the suit B schedule property is incorrect and misleading. The western half of the suit A schedule property, bearing door No.27 and the property situated west of it, bearing door No.26 had, originally, belonged to Valliammal and Subbaraya Padayachi. They had purchased the said property, under a registered sale deed, dated 10.12.1925. The defendant had purchased the western half of the A schedule property and the portion west of it, by way of a sale deed, dated 25.5.1998, for the sale consideration of Rs.2,63,500/-. It is false to state that T.S.No.1808 alone had belonged to the defendant’s vendor. The plaintiff had no title or right in respect of the western half of the A schedule property, including suit B schedule property, at any point of time. The dismissal of the suit, in O.S.No.437 of 1995, would not, in any way, affect the rights and the title of the defendant. The alleged compromise, said to have been entered into between the plaintiff and his brother, is a self serving document and therefore, it would not bind the defendant or his vendors. The claim of the plaintiff that he had prescribed title, in respect of the property in question, by way of adverse possession, is also false. The defendant is in actual possession and enjoyment of door Nos.26 and 27. The plaintiff has not satisfied any of the requirements of Order 39 Rules 1 and 2 of the Civil Procedure Code, 1908. Since, the plaintiff is not in possession of the suit B schedule property, he is not entitled to get a decree of injunction. 11. In view of the averments made on behalf of the plaintiff, as well as the respondent, and on analysing the evidence available on record, the trial Court had framed the following issues for consideration: "1. Whether the suit properties are the ancestral properties of the plaintiff? 2. Whether the decree, in O.S.No.274 of 1998, had been obtained by collusion and fraud and whether the same is binding on the defendant? https://hcservices.ecourts.gov.in/hcservices/ 3. Whether the suit properties are in possession of the plaintiff? 4. Whether the defendant is in possession of the suit property? 5. Whether the defendant would be affected by Order 9 Rule 9 of the Civil Procedure Code, 1908, since the suit in O.S.No.437 of 1995, had dismissed for default? 6. Whether the issues raised by the defendant would be barred by the principle of Res judicata, as they had already been raised in the suit? 7. Whether the plaintiff is entitled to the relief of permanent injunction, as prayed for by him? 8. In view of the recent events, whether the plaintiff is entitled to the relief, as prayed for by him? 9. Whether the sale in favour of the defendant is invalid as it had been made during the course of pendency of the suit? 10. What other reliefs, the plaintiff is entitled to?" 12. Three witnesses had been examined on behalf of the plaintiff and twenty two documents had been marked, as Exhibits A.1 to A.22. On behalf of the defendant, three witnesses had been examined and twenty one documents had been marked as Exhibits B1 to B.21. 13. Even though the plaintiff had claimed that the suit schedule property is an ancestral property and that they have been in possession and enjoyment of the said property, for more than a century, the trial Court had found that the plaintiff had not proved his claim by adducing sufficient oral, as well as documentary evidence. It was further found that the statement had been made on behalf of the plaintiff that a patta had been granted to him, in respect of the suit B schedule property. However, the plaintiff, who had been examined as P.W.1, had admitted, during his cross examination, that no such patta had been filed before the trial Court. Further, the admission made by the witnesses, examined as P.W.2 and P.W.3, are contrary to the claims made by the plaintiff. Relying on the document marked as Exhibit B.15, which is a sale deed, dated 25.5.1998, the trial Court had come to the conclusion that the defendant and his vendors have been in possession and enjoyment of the suit B schedule property. 14. The trial court had also come to the conclusion that the filing of the suit, in O.S.No.437 of 1995, by the defendant and one https://hcservices.ecourts.gov.in/hcservices/ Prabhavathy would not act as res judicata against the defendant, nor would the defendant be estopped from contesting the claims made on behalf of the plaintiff. 15. The trial Court had further found that the plaintiff, in his evidence, had admitted that the possession of the property in question is with the defendant. The trial court had also found that the plaintiff had not shown sufficient evidence to substantiate his claim that he had prescribed title in respect of the suit property, by way of adverse possession, as claimed by him. Further, it had been noted that the property in question had been sub divided, as T.S.Nos.1807/1 and 1807/2, contrary to the claim made by the plaintiff. Even though it had been claimed on behalf of the plaintiff that he had title in respect of the property in question, the trial Court had held that the plaintiff had not shown sufficient evidence to sustain the said claim. Therefore, the contention that possession follows title cannot be applicable in the present case. 16. The trial Court had found that Exhibit A.1, marked on behalf of the plaintiff, which is a compromise decree, dated 24.11.1998, made in O.S.No.274 of 1998, cannot be accepted as adequate evidence to sustain the plea of the plaintiff, in respect of the suit property, since, it is a self serving document. The trial Court had found that even though the name of the plaintiff finds a place in the copy of the Town Survey and Resettlement Register, marked as Exhibit A.20, it cannot be relied on to come to the conclusion that the plaintiff is having exclusive title in respect of the property concerned and that he is in possession of the same. In such circumstances, the trial Court had dismissed the suit filed by the plaintiff, by its judgment and decree, dated 27.6.2005, made in O.S.No.57 of 2003. 17. Aggrieved by the judgment and decree of the trial Court, dated 27.6.2005, the plaintiff had preferred an appeal, in A.S.No.57 of 2005, on the file of II Additional Subordinate Court, Cuddalore. 18. The first appellate Court had framed the following points for consideration: 1. Whether the defendant is barred by the principles enshrined in Order 9 Rule 9 and Rule 13 C.P.C? and the general principle of res judicata? 2. Whether the defendant's purchase is hit by the principles of lis pendens? 3. Whether the appeal is maintainable? 19. The first appellate Court had dismissed the appeal confirming the judgment and decree of the trial Court, by its https://hcservices.ecourts.gov.in/hcservices/ judgment and decree, dated 31.3.2006, made in A.S.No.57 of 2005. 20. The first appellate Court had found that the main contention of the plaintiff, who is the appellant in the first appeal, was that the defendant in the suit, who is the respondent in the said appeal, is not entitled to contest the suit, since, the defence raised on behalf of the respondent is barred, under Order 9 Rules 9 and 13 of the Civil Procedure Code, 1908, and that it is also barred by the principle of Res judicata. 21. It had been claimed that the suit filed by one Prabhavathy and the communist party of India, represented by its District secretary, Balakrishnan as the plaintiff in the suit, in O.S.No.437 of 1995, praying for a decree of permanent injunction, had been dismissed and the interlocutory application filed in I.A.No.2090 of 1997, for restoration of the suit had also been dismissed, on merits. As such, the respondent in the appeal could not be entitled to defend the suit by raising the same contention as in the earlier suit, in O.S.No.437 of 1995. However, the first appellate Court had not accepted the said contention raised on behalf of the appellant. 22. The first appellate Court had also found that the documents filed on behalf of the appellant, marked as Exhibits A.21 and A.22, were not sufficient to prove his possession and enjoyment of the suit property. Even though the appellant had contended that T.S.No.1807 had not been sub-divided, the first appellate Court had found, from the document marked as Exhibit B.3, that in the year, 1925, itself T.S.No.1807 had been sub-divided. 23. The first appellate Court had also found that the appellant had not substantiated his claim that his ancestors were the owners of the suit property and that he is continuing to be the owner of the property in question and that he is in possession and enjoyment of the same. 24. It has also been observed that it is for the appellant to establish the title and possession of the suit property to obtain a decree in his favour, as prayed for in the suit, in O.S.No.57 of 2003. However, the appellant had failed to sustain his claim by way of sufficient evidence. 25. The first appellate Court had also found that Exhibit B.1, the mortgage deed, dated 19.6.1945, had been marked through the plaintiff, during his cross examination. The said mortgage deed had been executed by the defendant’s father in favour of one Krishnasamy Iyengar. In the said document, it has been stated that he had got the property, as per the partition deed, dated 23.9.1932. However, the appellant had admitted that he had not filed the said partition deed. https://hcservices.ecourts.gov.in/hcservices/ 26. It had also been found that the claim of the appellant that he had prescribed title, in respect of the suit property, by way of adverse possession, had not been established. In such circumstances, the first appellate Court had confirmed the judgment and decree of the trial Court, by its judgment and decree, dated 31.3.2006, made in A.S.No.57 of 2005. 27. Aggrieved by the judgment and decree of the first appellate Court, dated 31.3.2006, the plaintiff in the suit, who was the appellant in the first appeal, had filed the present second appeal before this Court raising the following questions, as substantial questions of law: "1. Does not the dismissal of O.S.No.437 of 1995 constitute res judicata and bar the defendant/respondent from claiming title? 2. Doe not the dismissal of application to restore O.S.No.437 of 1995 constitute a bar under Order 9 Rule 9 C.P.C.? 3. Does not the decree in O.S.No.234 of 1974 have validity? 4. Whether the purchase by defendant pending lis is not invalid especially when that suit was dismissed? 5. Whether the plaintiff has not prescribed for title by adverse possession? 6. Were not the lower Courts wrong in not granting injunction based on possessory title as an alternative relief?" 28. The learned counsel appearing for the appellant had stated that the judgment and decree of the Courts below are against law, weight of the evidence and the probabilities of the case. The Courts below had not framed proper issues for consideration. The trial Court, as well as the first appellate court had failed to appreciate the oral, as well as the documentary evidence adduced in favour of the appellant. Even though the defence raised on behalf of the respondent was barred by res judicata, the Courts below had failed to note the same. Further, the Courts below had failed to come to the finding that the respondent is barred from raising the same issue as in the suit, in O.S.No.437 of 1995, in view of the principle enshrined in Order 9 Rule 9 of Civil Procedure Code, 1908. The courts below ought to have held that the respondent was estopped from raising the same issue as in the suit, in O.S.No.437 of 1995. https://hcservices.ecourts.gov.in/hcservices/ 29. He had also stated that the Courts below had failed to see that the purchase by the defendant is hit by the principle of lis pendens and that the defendant cannot have a valid title, in respect of the suit property. 30. He had also submitted that the trial Court, as well as the first appellate Court had failed to note that the respondent is not entitled to claim any right or interest in respect of the suit schedule property, which has been in the possession and enjoyment of the appellant. In such circumstances, the patta would be a strong evidence, with regard to the title in respect of the property concerned and as to its possession. Further, the Courts below had failed to see that the public records, unless proved to be fraudulent, had great evidentiary value. The courts below had also failed to see that the appellant had obtained title in respect of the suit property, by way of adverse possession. 31. He had also contended that the courts below ought not to have taken note of the fact that an iron gate had been put up by the respondent, after the filing of the suit. In fact, the Courts below ought to have decided the issues arising for their consideration, as on the date of the filing of the suit and not on the basis of a subsequent event, which had taken place after the filing of the suit. 32. The learned counsel had also submitted that the Courts below had erred in not properly appreciating Exhibit A.1, compromise decree, dated 24.11.1998, made in O.S.No.274 of 1998, on the file of the Sub-Court Cuddalore. Further, the Courts below had erred in coming to their conclusions without giving due weightage to Exhibit A.20, which is a copy of the Town Survey and Resettlement Register, marked as Exhibit A.20, wherein, the name of the appellant had been entered. 33. Per contra, the learned counsel for the respondent in the second appeal had contended that the appellant had not filed any document, either to prove his title or his possession, in respect of the suit schedule property. Both the Courts below were right in coming to their conclusions that the principle of res jduicata would not apply to the present case, in view of the fact that the earlier suit, in O.S.No.437 of 1995, filed by one Prabhavathy and the communist party of India had not been decided on merits. 34. He had submitted that, even though the appellant in the second appeal, who was the plaintiff in the suit, in O.S.No.57 of 2003, had claimed, in paragraph 3 of the plaint that the appellant and his ancestors were in possession and enjoyment of the suit property for more than a century, nothing has been shown by the appellant by way of evidence to substantiate such a claim. The alleged compromise decree, dated 24.11.1998, made in O.S.No.274 of 1998, marked as Exhibit A.1, cannot be taken as sufficient evidence https://hcservices.ecourts.gov.in/hcservices/ to prove the claim made by the appellant, as it is a self serving document. Further, the appellant had not been in a position to show that he had prescribed title, in respect of the suit property, by way of adverse possession. On the contrary, sufficient documents had been marked, before the trial Court, to sustain the claim of the respondent that they had been in enjoyment of the suit property, from the time of its purchase, in the year, 1923. Therefore, the learned counsel appearing for the respondent had submitted that the second appeal filed by the appellant is liable to be dismissed, as it is devoid of merits. 35. The learned counsel appearing for the respondent had relied on the following decisions in support of his contentions: 35.1. In S.CENNIAPPA MUDALIAR, MADURAI Vs. THE COMMISSIONER OF INCOME-TAX, MADRAS (AIR 1965 MAD 62), this Court had held as follows: "There is a real distinction between the case of dismissal of legal proceedings for default of appearance and one given on merits. In the former case, it is termination of the proceeding for non-prosecution. Such termination decides nothing as regards the matters in controversy. It merely gets rid of the pending proceeding. The dismissal of a case for default can in no sense amount to an adjudication on merits. This is quite unlike a case of an ex parte decision where there is an adjudication on the merits. Rule 24 of the Appellate Tribunal Rules enables the Tribunal at its discretion to dismiss a case either for default or to decide it ex parte. The power to decide a case ex parte is undoubtedly covered by the authority conferred on the Tribunal by the Section 5-A and is further consistent with the construction of Section 33(4) as it is a disposal of the appeal on merits. 12. ........ Unless there be a statutory bar, the dismissal of a case for default, cannot prevent the party from commencing the same proceedings might become impossible on account of rules of limitation as to the filing of appeals by reason of any specific provision in that regard under the Rules themselves. It will thus be apparent that the dismissal of a case for default can in no sense amount to an adjudication on its merits. This is quite unlike a case of an ex parte decision, where there is an adjudication on the merits. A judgment given for default of appearance by the appellant cannot (unlike the case of an ex parte one), operate as res judicata." https://hcservices.ecourts.gov.in/hcservices/ 35.2. In THE COMMISSIONER, HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS, MADRAS Vs. V.KRISHNASWAMI AND ANOTHER (AIR 1975 MADRAS 167), the Division Bench of this Court had held as follows: "11. As a matter of fact, the Supreme Court itself has held in the case referred to above Bhavanarayanaswamivari Temple Vs. Bhavanarayanacharyulu, 1971-1 Mad LJ 49 (SC) that the question as to how far a decision which is rendered in other proceedings will bind the parties depends upon other considerations, one of which will be whether that decision determines substantial rights of parties and the other is whether the parties were given adequate opportunities to establish the rights placed by them. 12. We may also refer to another decision of the Supreme Court in Shivashankar V. Baikunth Nath Singh, AIR 1969 SC 971, wherein it has been held that before a plea can be held to be barred by res judicata that plea must have been heard and determined by the Court. In Chenniappa Mudaliar V. C.I.T. Madras 1964 2 Mad LJ 157: (AIR 1965 Mad 62) a Full Bench of this Court has held, while dealing with a matter which arose under the Income-tax Act, that the dismissal of a case for default can in no sense amount to an adjudication on its merits quite unlike a case of ex parte decision, where there is an adjudication on the merits and that the former cannot