IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 17.12.2009 CORAM THE HON’BLE MR.JUSTICE M.JEYAPAUL SECOND APPEAL NOS.1424 OF 1997 AND 1389 OF 2002 Muthiya Pillai Appellant/Plaintiff in both S.A's vs. Ramalingam Respondent/Defendant in both S.A's For appellant in both SA's : Mr.S.Sounthar For respondent : Mr.A.Muthukumar both SA's Prayer:- Second Appeals against the judgments and decrees of the learned Principal Sub Judge, Mayiladuthurai dated 31.1.1997 and Additional Subordinate Judge, Mayiladuthurai dated. 18.12.2001 made in A.S.Nos.30 of 1996 and 76 of 2001 respectively preferred against the judgments and decrees of the learned Additional District Munsif, Mayiladuthurai dated 19.1.1996 and 21.8.2001 made in O.S.Nos.335 of 1990 and 114 of 1998 respectively. COMMON JUDGMENT The plaintiff filed O.S.No.335 of 1990 seeking permanent injunction restraining the defendant from interfering with the possession and enjoyment of the Government poramboke land measuring 12 cents in his possession. The other suit in O.S.No.114 of 1998 was filed by the plaintiff praying for recovery of possession of A schedule property and for permanent injunction with respect to B schedule property or in the alternative for recovery of possession of B schedule property. 2. As the parties in both the appeals are one and the same and the suit properties are also found to be contiguous both the appeals are taken up for common disposal. 3. The plaintiff has contended in O.S.No.114 of 1998 that there was a partition in the family in the year 1970. With the funds https://hcservices.ecourts.gov.in/hcservices/ provided by his father-in-law, the plaintiff purchased the property described in O.S.No.114 of 1998 on 25.12.1960. Only on permission granted by the plaintiff, the defendant, who is the only brother of the plaintiff, put up a small hut in the A schedule property and has been residing over there. The earlier litigation initiated by the defendant in O.S.No.306 of 1990 on the file of the court of the District Munsif, Mayiladuthurai ultimately ended in favour of the plaintiff. Though the plaintiff's father entered into an agreement of sale with one Ramu for purchasing the suit property, he died even before clinching the sale transaction. As there was no joint family funds for purchasing the suit property, the plaintiff, having mobilised fund from his father-in-law, purchased the same. As the suit property is self-acquired property of the plaintiff, the said property did not form part of the partition that took place in the year 1970 in the family. Having thus alleged, the plaintiff sought for the aforesaid reliefs. 4. In the written statement filed by the defendant in O.S.No.114 of 1998, it is contended that there was a family arrangement only with respect to the property situate at Manalmedu. There was no partition with respect to all the suit properties. The plaintiff being the eldest member of the family, took control of the family affairs and purchased the suit property after the demise of his father, who already entered into an agreement of sale during his lifetime. The defendant controverted the allegation of the plaintiff that he gave permission to the defendant to put up a house in A schedule property. The defendant is enjoying the entire suit property alongwith the adjoining poramboke lands. Though the plea for permanent injunction with respect to the suit property raised by the defendant in O.S.No.306 of 1990 was rejected by the appellate court in A.S.No.37 of 1996 on the file of the Sub Court, Mayiladuthurai, there is no clear finding that the suit properties are the joint family properties. As A and B schedule properties are joint family properties, the plaintiff is not the exclusive owner of the same. The finding rendered in A.S.No.37 of 1996 will operate as res judicata in respect of the contention raised by the plaintiff in the present suit. Therefore, the defendant has sought for dismissal of the suit in O.S.No.114 of 1998. 5. The plaintiff in O.S.No.335 of 1990 would contend that the suit property is a Government poramboke land. It is a coconut thope. Regularising possession of the property, the Government issued 2C patta. The entire poramboke land is in possession and enjoyment of the plaintiff. The defendant does not have any right over the property nor has he been in possession and enjoyment of the same. The plaintiff, having alleged that the defendant is making an attempt to encroach upon the suit property taking advantage of the enjoyment of the contiguous property owned by the plaintiff, sought for permanent injunction. https://hcservices.ecourts.gov.in/hcservices/ 6. In the written statement, the defendant has contended that the plaintiff, taking advantage of his management of the joint family property, obtained 2C patta in his name and paid taxes. The coconut trees were raised by the father who died in the year 1959. The plaintiff did not raise any tree independently. The income from the trees were utilized for the family benefit. The defendant has put up superstructure in the suit property believing the words of the plaintiff that the suit property would be allotted to the share of the defendant. The entire extent of the suit property is in possession of the defendant in his capacity as joint family member. Disputing the allegation of the plaintiff that the suit property is the sole property of the plaintiff, the defendant seeks for dismissal of the suit in O.S.No.335 of 1990. 7. In O.S.No.114 of 1998, the Trial Court, having found that the suit property was the self-acquired property of the plaintiff and that the defendant was only a permissive occupier, chose to decree the suit as prayed for by the plaintiff in O.S.No.114 of 1998. 8. In the appeal preferred by the defendant, the first appellate court reversed the finding of the Trial Court. It rendered a finding that the adverse finding recorded by the appellate court in A.S.No.37 of 1996 on the file of the Sub Court, Mayiladuthurai that the suit property was the joint family property, operates as res judicata, inasmuch as the said adverse finding staring at the plaintiff was not challenged by the plaintiff. Therefore, the first appellate court held that the plaintiff was not entitled to a decree for delivery of possession in respect of A schedule property and permanent injunction with respect to B schedule property. 9. The Trial Court, in O.S.No.335 of 1990, held that the poramboke land measuring 2 cents, which was the subject matter of the said suit, was the property of the joint family consisting of the plaintiff, the defendant and other brothers. Further, the defendant was in possession and enjoyment of the said property. Therefore, the Trial Court held that one co-owner cannot seek for permanent injunction as against the other who was found to be in possession of the property. The above findings of the Trial Court was upheld by the first appellate court in the appeal preferred by the plaintiff. 10. During the course of admission of Second Appeal No.1424 of 1997, the following substantial question of law was formulated:- "Whether the courts below misconstrued or omitted to construe the materials on record,both oral and documentary, in negativing the relief of permanent injunction as prayed for by the appellant/plaintiff." 11. While admitting Second Appeal No.1389 of 2002, the following substantial questions of law were formulated for determination:- "1. Whether the judgment of the lower appellate court https://hcservices.ecourts.gov.in/hcservices/ is vitiated in holding that adverse finding in A.S.No.37 of 1996 will operate as res judicata against the present suit, when the appellant was a successful party in A.S.No.37 of 1996. 2. Whether the appeal against mere adverse finding by successful party is maintainable. 3.Whether the burden of proof is not lying on the person who claims a property as joint family property especially when that property stands in the name of another individual." 12. The plaintiff and the defendant are brothers. The plaintiff would contend that he purchased the suit properties covered in both the suits under the sale deed Ex.A6 marked in O.S.No.335 of 1990. There was a partition in the year 1970 in the family. The family members thought it fit not to include this property for the purpose of division of the same by the family members. The plaintiff also contends that the suit properties were purchased under Ex.A6 marked in O.S.No.335 of 1990 long after partition in the joint family. Therefore, he claims exclusive right over the suit properties. As regards the patta lands, the plaintiff contends that the defendant came to occupy the land on permission granted by the plaintiff. As regards the poramboke land, the plaintiff would assert that he has been in possession and enjoyment of the suit property. 13. Per contra, the defendant would contend that both the suit properties are the joint family properties. The plaintiff, who was managing the joint family properties, purchased the patta land in his name and obtained 2C patta for the poramboke land taking advantage of his position as kartha of the joint family. It is contended by the defendant that the plaintiff is not in possession of the suit properties whereas he has been in possession and enjoyment of the suit properties. 14. Let me first take up the plea of the defendant that the suit properties are hit by the principle of res judicata. On a perusal of the judgment in A.S.No.37 of 1996, it is found that the defendant herein filed a suit in O.S.No.306 of 1990 on the file of the Additional District Munsif, Mayiladuthurai as against the plaintiff praying for permanent injunction with respect to the very same suit properties. In the said suit, the defendant herein had contended that the suit properties were joint family properties. The first appellate court, having adverted to the concrete stand taken by the defendant herein in the suit filed by him in O.S.No.306 of 1990, held that the defendant herein had come out with a case that the suit properties were joint family properties. When the suit properties were joint family properties even as per the version of the defendant herein, the defendant herein could not make a claim for permanent injunction, it has been observed by the first appellate court in A.S.No.37 of 1996. https://hcservices.ecourts.gov.in/hcservices/ 15. On a perusal of the judgment passed in A.S.No.37 of 1996, it is found that the appellate court, in fact left open the issue as to whether the suit properties were the self-acquired properties for determination in a properly instituted suit. The appellate court has found that in a suit for bare injunction laid by the defendant herein, the question of determination as to whether the suit properties were the joint family properties or not was out of purview. In other words, taking into consideration the very stand taken by the defendant that the suit properties were the joint family properties, the first appellate court held that the defendant herein was not entitled to an order of injunction as prayed for by him. As rightly pointed out by the learned counsel appearing for the appellant, the aforesaid finding recorded by the appellate court in A.S.No.37 of 1996 would not even distantly operate as res judicata for the suit which has been laid by the plaintiff. Further, it is found that there was no issue framed by the Trial Court in O.S.No.306 of 1990 or any point for determination was formulated by the first appellate court in A.S.No.37 of 1996 as to whether the suit properties were the joint family properties of the family consisting of the plaintiff, the defendant and their other brothers. No finding as to the nature of the property was also recorded in the judgment pronounced by the first appellate court. Even otherwise, it is found that the said appeal was determined in favour of the plaintiff herein. The plaintiff, having won his case in the appeal preferred by him before the first appellate court in A.S.No.37 of 1996, is not expected to file any appeal as against the adverse finding, if any, made in the said judgment. 16. The learned counsel appearing for the appellant referred to the decision in M/s.RAM MOHAN AND CO. AND ANOTHER v. M/s.GANESAR GINNING CO. P. LTD., COIMBATORE AND OTHERS (AIR 2000 MADRAS 1) wherein it has been unambiguously held by this court that an appeal can lie only as against the decree or order for which an appeal is expressly provided under Order 43 Rule 1 of the Code of Civil Procedure and no appeal would lie as against a mere finding. 17. Firstly, it is found that there was no finding that the suit properties were the joint family properties in A.S.No.37 of 1996. Secondly, it is found that the said appeal, in fact, ended in favour of the plaintiff herein. Even assuming for the sake of argument that there was some adverse finding as against the plaintiff, the plaintiff, who went on appeal, cannot prefer any appeal as against the mere finding in the said judgment. In view of the above facts and circumstances, I find that the principle of res judicata will not operate in this case. 18. The plaintiff has categorically admitted that originally his father entered into an agreement for sale with one Ramu for purchasing the suit properties. It is his contention that as his father had passed away beforeever the sale could be executed and https://hcservices.ecourts.gov.in/hcservices/ registered, the suit properties were purchased by the plaintiff out of the funds provided by his father-in-law as there was no joint family income. 19. The learned counsel appearing for the plaintiff would submit that the very fact that the sale deed, Ex.A6 marked in O.S.No.335 of 1990 stands in the name of the plaintiff would give rise to presumption that he is the absolute owner of the suit properties. Per contra, it is contended by the learned counsel appearing for the defendant that the plaintiff has admitted during the course of evidence that the plaintiff managed the joint family properties after the demise of his father. Unless the plaintiff, who had acted as kartha, produces evidence to show that he had independent source of income, it has to be presumed that the property purchased in the name of the kartha was only for the benefit of the joint family, it is submitted. 20. As rightly pointed out by the learned counsel appearing for the defendant, the plaintiff, during the course of cross-examination, has unambiguously admitted that after the demise of his father, he was in the management of the family properties. Of course, it is contended by the learned counsel appearing for the plaintiff that such a stray version found in the cross-examination cannot be truncated and viewed in isolation. On a careful perusal of the evidence given by the plaintiff, it is found that though the plaintiff has originally come out with the case that he was not managing the family properties, as there was an oldest member in the family, he has categorically admitted during the course of cross- examination that it was he who managed the the entire family properties after the demise of his father. Therefore, such an admission of the plaintiff cannot be simply ignored by this court. 21. As per the own admission of the plaintiff, he has been at the helms of the affairs of the joint family managing the joint family properties. It is the admitted case of the plaintiff that the agreement for sale was actually entered into by his father with the original owner Ramu for purchasing the suit properties. If at all the plaintiff had originally intended to purchase the suit property out of his individual income, the father, the then kartha of the joint family would not have entered into an agreement for sale for purchasing the suit property. In this context, the learned counsel appearing for the defendant cited a decision of a Division Bench of this court in P.R.KANNAIYAN (DIED) & 7 OTHERS v. RAMASAMY MANDIRI S/o.GOVINDA MANDIRI & 10 OTHERS (2005-3-LW 627) wherein it has been observed by this court as follows:- "It is apparent that an exception is carved out in the matter relating to acquisition in the name of Karta, where it is proved that Karta had no independent income and he is in possession of some nucleus and not necessarily sufficient nucleus of the joint family https://hcservices.ecourts.gov.in/hcservices/ property. In such a case, even where sufficient nucleus is not proved but existence of some nucleus is proved and it is further proved that Karta or Manager, in whose name property had been purchased, had no independent income, the burden is shifted to the Karta to prove that the property has been acquired without the aid of the joint family and with the own separate income of the Karta or the Manager." 22. It is pertinent to note that the plaintiff has categorically admitted during the course of evidence that there was no other independent income for him. He, having come out with a plea that he purchased the suit properties out of the funds provided by his father-in-law, had not let in any evidence touching upon such a plea. As already pointed out by this court, he had admitted that he acted as Karta immediately after the demise of his father and that the joint family properties were in the management of the plaintiff. The joint family members might not have provided sufficient nucleus for purchasing the suit properties. But, the very admission of the plaintiff would go to show that there had been some nucleus for the joint family. In the light of the aforesaid decision of this court, the Kartha, in whose name, the property stands, has to establish that he had independent source of income for purchasing the suit property in his name. The burden is very heavy on the kartha to establish that he purchased the suit properties in his name without the aid of the nucleus of the joint family property. 23. Coming to the partition that took place in the year 1970 in the family of the plaintiff and the defendant, the plaintiff would admit that only one property situate at Manalmedu alone was partitioned. He would also depose that the said property was originally owned by his mother Rathna Aachiammal. There was no evidence to show that the other properties of the joint family were partitioned in the year 1970. Just because the suit properties were not included in the partition that took place in the joint family in the year 1970, we cannot presume that the suit properties were not included in the said partition only because these properties were the separate properties of the plaintiff. 24. The description found in Ex.A6 marked in O.S.No.335 of 1990 would go to establish, as found by the courts below, that the entire properties covered both in O.S.No.335 of 1990 and O.S.No.114 of 1998 which are located contiguously, have been fenced together and enjoyed by the defendant. Such a factual finding cannot be disturbed by the second appellate court unless the said finding is perverse. The Advocate Commissioner has pointed out that both the properties were combinedly fenced. The plaintiff also has deposed that whenever he proceeded to the poramboke property for the purpose of plucking the coconuts, stiff resistance was put up by the defendants. These facts had weighed the mind of the court below to arrive at a conclusion https://hcservices.ecourts.gov.in/hcservices/ that it was only the defendant who has been in possession of the poramboke land also. The courts below have rightly analysed the materials on record both oral and documentary and rejected the relief of permanent injunction sought for by the plaintiff with respect to the joint family poramboke property. 25. In view of the above facts and circumstances, I find that there is no warrant for interference with the well considered judgments of the courts below. Therefore, confirming the judgments pronounced by the first appellate court in both the first appeals, the second appeals stand dismissed. There is no order as to costs. Sd/- Asst. Registrar /true copy / Sub Asst.Registrar ssk. To 1. The Principal Sub Judge, Mayiladuthurai. 2. The Additional Subordinate Judge, Mayiladuthurai 3. Additional District Munsif, Mayiladuthurai. • 1 CC to Mr.Sounthar, Advocate, Sr.No.69876 • 1 CC to Mr.A.Muthukumar, Advocate, Sr.No. 69351 S.A.Nos.1424 of 1997 and 1389 of 2002 RSM (CO) SS (03.02.2010) https://hcservices.ecourts.gov.in/hcservices/