IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:11.01.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.903 of 2006 Murugesan @ Chinnappa ... Appellant/Plaintiff vs. Saroja Ammal ... Respondent/Defendant This second appeal is filed against the judgement and decree dated 30.1.2006 passed by the Principal Sub-Court, Tindivanam, in A.S.No.67 of 2004 confirming the judgement and decree dated 16.3.2004 passed by the District Munsif Court, Tindivanam, in O.S.No.138 of 1997. For Appellant : Mr.P.B.Balaji For Respondent : Mr.A.K.Kumarasamy JUDGMENT This second appeal is filed by the plaintiff, inveighing the judgement and decree dated 30.1.2006 passed by the Principal Sub- Court, Tindivanam, in A.S.No.67 of 2004 confirming the judgement and decree dated 16.3.2004 passed by the District Munsif Court, Tindivanam, in O.S.No.138 of 1997, which was filed for declaration and recovery of possession. 2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court. 3. Compendiously and concisely the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus: (a) The plaintiff, who is the appellant herein, filed the suit for declaration of his title to the suit property and recovery of possession of the same with damages. (b) Written statement was filed refuting and impugning the allegations/averments in the plaint. https://hcservices.ecourts.gov.in/hcservices/ (c) Whereupon issues were framed by the trial Court. The plaintiff, on his side examined himself as P.W.1 along with P.W.2 and marked Exs.A1 to A5. On the defendant's side, she examined herself as D.W.1 along with D.W.2 to D.W.4 and marked Exs.B1 to B5. (d) Ultimately the trial Court dismissed the suit. (e) Being aggrieved by and dissatisfied with the judgement and decree of the trial Court, the appeal was filed by the plaintiff for nothing but to be dismissed by the appellate Court confirming the judgement and decree of the trial court. 4. Challenging and impugning the judgements and decrees of the Courts below, the second appeal has been filed on various grounds, along with the following proposed substantial questions of law: "a) Whether, in the face of admission by the defendant/respondent that the plaintiff/appellant herein and his father, Venupillai were being as member of a joint family and in the absence of any positive assertion by Venupillai in Ex.B1 (Sale Deed) that the suit property was his self acquired property, there cannot be any legal inference that the suit property is the joint family property of Venupillai and his son the 1st plaintiff/appellant herein and as such Ex.B1 is not true, genuine and valid? b) Whether, once the plaintiff/appellant proved that the suit property was an ancestral property, the burden shifts to defendant/respondent are it is the duty that the suit property to the self acquired property of Venupillai? c) Whether the lower appellate Court has not erred in not properly considering the relevant documents like Ex.A5 (plaint in O.S.No.206/76) Ex.A2 and A3 in proper prospective and the effect these documents have on the rights of the parties into case? d) Whether the lower appellate Court has not committed a grave error in reading in the plaint in O.S.No.206/76 something which is not there whether resulted in miscarriage of justice." 5. While admitting the second appeal, my learned predecessor framed the following substantial question of law: "Having accepted the case of the appellant that there was no res-judicata in view of the earlier suit filed for partition, whether the subsequent finding of the lower https://hcservices.ecourts.gov.in/hcservices/ appellate Court that there was res- judicata would result in miscarriage of justice?" (emphasis supplied) 6. Heard both sides. 7. At the out set itself I would like to point out that in the substantial question of law framed, there is an error crept in. The substantial question of law pre-supposes as though the first appellate Court accepted the plea of res-judicata when in fact, the first appellate Court did not accept the plea of res-judicata, but it only accepted the plea based on Order 9 Rule 9 of C.P.C. As such, the words 'res-judicata' appearing at the latter portion of the above substantial question of law shall stand replaced by the following: '"bar for filing of the subsequent suit, as per Order 9 Rule 9 of C.P.C." 8. Both sides argued extensively on the above substantial question of law. 9. Indubitably and indisputably, unarguably and unassailably there are certain facts, which could be set out here under: 10. The appellant/plaintiff herein would claim that his father and himself happened to be the co-sharers of the ancestral property, namely, the suit property, and according to him, his father unilaterally sold the property, vide Sale Deed-Ex.B1 dated 15.9.1975. Whereupon the plaintiff earlier filed the suit in O.S.No.206 of 1976, seeking for partition and for separate possession of his half share, adding even the present 3rd defendant as one of the defendants in the earlier suit. The said suit was dismissed for default on 28.9.1977, as revealed by Ex.A5. Subsequently certain proceedings took place and ultimately that also was dismissed. 11. Thereafter, it appears, the plaintiff herein filed the fresh suit, namely, the present suit in O.S.No.138 of 1997 seeking declaration and for recovery of possession in respect of the same suit property, as this suit was filed after the death of his father. 12. The respondent/defendant herein resisted the suit by pointing out that the plaintiff suppressed the factum of he having filed the earlier suit for partition and the dismissal of the same. The trial Court, instead of framing an issue citing Order 9 Rule 9 of C.P.C., cited only the plea of res-judicata, as the defendant No.3 erroneously invoked the plea of res-judicata. 13. I am of the view that from the general averments in the written statement, it is for the Court to frame appropriate legal issues. The lower Court correctly held that the plea of res-judicata https://hcservices.ecourts.gov.in/hcservices/ would not be attracted for the reason that the earlier suit was dismissed for default. However, before the appellate Court the learned counsel for the defendant correctly and appropriately pressed into service Order 9 Rule 9 of C.P.C. and it was accepted by the appellate Court. 14. The appellate Court, being the last Court of fact, was competent to entertain such a plea based on Order 9 Rule 9 of C.P.C.and even though the plea of res-judicata was not applicable, the plea based on Order 9 Rule 9 of C.P.C. could rightly be pressed into service, because Ex.A5 would exemplify and demonstrate, project and portray that the earlier suit was dismissed, for default on the part of the plaintiff in prosecuting the matter. In fact, cost was awarded to D3, who happened to be the respondent/defendant in this case. In such a case, the first appellate Court was right in invoking Order 9 Rule 9 of C.P.C. and giving a finding that the subsequent suit was barred, warranting no interference in second appeal. 15. On the appellant/plaintiff's side there is nothing to indicate that the defendant was absent as on the date of dismissal of the earlier suit etc. In fact, cost was awarded in favour of D3-the respondent/defendant herein in the previous suit and in such a case, the judgment of the first appellate Court cannot be found fault with. 16. My learned predecessor, while framing the substantial question of law felt clearly that all other findings by the Courts below are based on factual evidence and in such a case, no substantial question of law could be framed based on that. 17. In view of the above, I am of the considered view that the second appeal is having no merits and accordingly the second appeal is liable to be dismissed deciding this substantial question of law in favour of the respondent and as against the appellant. However, there is no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Msk https://hcservices.ecourts.gov.in/hcservices/ To 1.The Principal Sub-Court, Tindivanam. 2.The District Munsif Court, Tindivanam. 3.The Section Officer, VR Section, High Court,Madras. +1cc to Mr.P.B.Balaji Sr 2474 +1cc to MR.A.K.Kumarasamy, Sr 2337 KM(CO) km/12.5. S.A.No.903 of 2006 https://hcservices.ecourts.gov.in/hcservices/