IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 23.09.2011 CORAM THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN S.A.No.271 of 2010 and M.P.No.1 of 2010 Durairaj .. Appellant/Respondent/defendant Vs. Sri Kaliamman Koil, Velipalayam rep. by its Trustees 1. L.Vetriselvam S/o.Late S.N.Lakshmanan 2. S.Arumugam, S/o.Late Sivaparakasam 3. N.Venkatesan, S/o.Nagarajan .. Respondents/Appellants/Plaiantiffs Prayer:- Second Appeal filed under Section 100 of Code of Civil Procedure against the judgment and decree dated 24.7.2009 in A.S.No.22 of 2008 on the file of the Court of District Judge at Nagapattinam,reversing the judgement and decree in O.S.No.26 of 2006, dated 19.9.2007 on the file of the Court of Subordinate Judge at Nagapattinam. For Appellant .. M/s.Arulselvam Associates For 2nd Respondents .. Ms.G.Devi J U D G E M E N T The defendant in O.S.No.26 of 2006 on the file of the Subordinate Court, Nagapattinam, is the appellant. 2. The respondents/ plaintiffs filed the suit for eviction stating that the suit property belongs to the Temple and they are the Trustees of the Temple and originally the property was leased out to one Santhanam and after his death one Pappathiammal who was living with Santhanam continued to enjoy the property and was paying the rent to the respondents' Temple and thereafter the respondents' Temple filed the suit in O.S.No.253 of 1980 on the file of the District Munsif Court, Nagapattinam against Pappathiammal for eviction and that suit was dismissed and the appeal filed by the respondents' Temple in A.S.No.127 of 1981 was https://hcservices.ecourts.gov.in/hcservices/ allowed and Pappathiammal filed S.A.No.1040 of 1982 and during the pendency of the Second Appeal she died on 16.6.1986 the appellant claimed to be a legattee under a Will alleged to have been executed by Pappathiammal took steps to implead himself as Legal Representative of the deceased Pappathiammal . But he was not allowed to get himself implead as Legal Representative and Second Appeal was dismissed on 10.3.1993 and thereafter the respondents' Temple/ plaintiffs filed E.P.No.23 of 1996 for delivery and delivery was ordered on 30.8.1996 and the appellant filed E.A.No.222 of 1996 under Section 47 of CPC stating that the decree cannot be executed against him and E.A.No.222 of 1996 filed by the appellant was dismissed on 7.10.1996 and the appellant filed C.R.P.No.3295 of 1997 against that order and that was also dismissed by this Court on 26.11.1997. Thereafter, he instigated one Anthonyammal claiming to be the daughter of Santhanam and she filed the suit in O.S.No.2 of 1997 for injunction and that was also dismissed on 9.7.1997 confirmed the appeal in A.S.No.336 of 1997. Thereafter, delivery was effected in E.P.No.23 of 1996 in O.S.No.253 of 1980 and delivery was taken. Taking advantage of the exparte injunction obtained by Anthonyammal in S.A.No.1437 of 1998 filed against the decree in O.S.No.2 of 1997 confirmed in A.S.No.336 of 1997 the said Anthonyammal trespassed into the property and by order dated 9.12.1998 this Court vacated the injunction granted in C.M.P.No.13604 of 1998 in S.A.No.1437 of 1998. The appellant also filed O.S.NO.75 of 1998 for permanent injunction and trespassed into the suit property on 29.9.1998. Therefore, the present suit was filed for delivery of possession. 3. The appellant contested the suit stating that the present suit for delivery of possession is not maintainable as the appellant had taken possession in E.P.NO.23 of 1996 in O.S.NO.253 of 1980. The appellant further took the plea that the respondents' Temple/ plaintiffs have no title to the suit property and in the earlier suit O.S.NO.253 of 1980 the respondents' Temple/ plaintiffs did not prove their title and therefore the decree in O.S.No.253 of 1980 will not bind him as he was not a party to the proceedings and having taken the plea the delivery was effected earlier the second suit for delivery of possession was not maintainable. 4. The trial Court dismissed the suit holding that when the respondents' Temple/ plaintiffs was dispossessed by the appellant herein, the plaintiffs ought to have filed a suit under Section 6 of the Specific Relief Act within six months from the date of dispossession and the appellant herein was not a party in O.S.No.253 of 1980 and he now claims independent title to the suit property and therefore the decree in O.S.No.253 of 1980 will not bind him and the respondents' Temple/ plaintiffs failed to prove that the appellant is a trespasser and how the appellant came into possession of the property and the respondents' Temple/ plaintiffs also failed to prove their title and therefore they are not entitled to the decree. 5. The first appellate Court reversed the finding of the trial Court holding that in E.P.No.23 of 1996 the delivery was https://hcservices.ecourts.gov.in/hcservices/ ordered and the appellant filed E.A.No.222 of 1996 under Section 47 of CPC resisting the delivery and his application was dismissed and confirmed in CRP.No.3295 of 1997 and therefore the respondents' Temple/ plaintiffs proved their title and after getting delivery the appellant trespassed into the property and now claimed that he is entitled to remain in possession under the settlement deed executed by Pappathiammal and the appellant being a party in the application under Section 47 of CPC filed by him in E.A.No.222 of 1996 in E.P.No.23 of 1996 in O.S.NO.253 of 1980 he is bound by the decree passed in O.S.No 253 of 1980 and he also originally claimed as a Legal Representative of Pappathiammal and relied upon the Judgement reported in 2008 (1) MLJ, Madras page 349, held that he is bound by the decree passed in O.S.No.253 of 1980 and allowed the appeal. Hence, the Second Appeal. 6. The learned counsel for the appellant submitted that admittedly the respondents' Temple/ plaintiffs failed to prove their title to the suit property when the same was disputed by the appellant in the written statement and in the earlier suit O.S.No.253 of 1980 the appellant was not a party and though he attempted to get himself implead as Legal Representative in the Second Appeal in S.A.No.1040 of 1982, he was not allowed to get himself implead and therefore he is not bound by the Judgement and Decree passed in O.S.No.253 of 1980. He further submitted that though he filed E.A.No.222 of 1996 in E.P.No.23 of 1996 that petition was dismissed and that cannot operate as res judicata and the matter was finally decided in the E.P proceedings and therefore the dismissal of E.A.No. 222 of 1996 in E.P.No.23 of 1996 will not operate as res judicata. He further submitted that the respondents' Temple/ plaintiffs obtained delivery of possession of the property in E.P.No. 23 of 1996 and after realizing that the appellant is in possession of the property they filed an application for redelivery and that was dismissed and the same was also confirmed in C.R.P.638 of 2001 and therefore the suit is also not maintainable for delivery of possession. 7. I am unable to accept the contention of the learned counsel for the appellant. Even though the appellant was not a party in O.S.No.253 of 1980, it is admitted that he attempted to implead himself as Legal Representative of Pappathiammal the defendant/ appellant in S.A.No.1040 of 1982 and he was not allowed to get himself implead as Legal Representative. Thereafter, E.P.No.23 of 1996 was filed against the appellant and he also filed an application under Section 47 of CPC questioning the executability of the decree passed in O.S.No.253 of 1980 against him and in that application in E.A.No.222 of 1996 filed by the appellant, it was held that the appellant is bound by the decree and his application was dismissed and the same was confirmed in C.R.P.No.3255 of 1997 by this Court. As per Section 47 of CPC, All questions arising between the parties or their representatives shall be determined by the Court executing the decree and not by a separate suit and as per Section 47(2) of CPC, the question as to whether a person is the representative of the party or not shall be determined by the Court. https://hcservices.ecourts.gov.in/hcservices/ 8. Therefore having regard to the finding in E.A.No.222 of 1996 by the Court that the appellant is the representative of Pappathiammal and he is bound by the decree, he cannot resist the execution and it is not open to the appellant now to contend that he is not bound by the decree. Therefore, the lower appellate Court has rightly held that the appellant is bound by the decree passed in O.S.No.253 of 1980. Further, in O.S.No.253 of 1980 the title of the respondents' Temple / plaintiffs was accepted and decree was passed and thereafter the delivery was also ordered and it is also not in dispute that the delivery was also effected in favour of the respondents' Temple/ plaintiffs. It is the specific case of the respondents' Temple/ plaintiffs that one Anthonyammal trespassed into the suit property after getting exparte injunction in CMP.No.13604 of 1998 in S.A.No.1437 of 1998 and after the injunction order was vacated the appellant trespassed into the property on 29.9.1998. Therefore, on the basis of the illegal act on the part of the appellant in committing trespass into the suit property, the present suit was filed for recovery of possession and the lower appellate Court has rightly held that the respondents' Temple is entitled to the decree and they have already proved their title in the earlier suit and it is not open to the appellant to question the title in the suit. Hence, I do not find any reason to interfere with the Judgement and Decree of the lower appellate and no substantial question of law arises for consideration in the Second Appeal and the Second Appeal is dismissed. 9. In the result, the Judgement and Decree of the lower appellate Court are confirmed and the Second Appeal is dismissed Consequently, connected Miscellaneous Petition is closed. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar kr To 1. The District Judge, Nagapattinam. 2. The Subordinate Judge. Nagapattinam. 1 cc to Mr.M.Arul Selvam , Advocate, Sr.No.59602 1 cc to Mr.V.Raghupathi , Advocate, Sr.No.59393 S.A.No.271 of 2010 and M.P.No.1 of 2010 bs(co)pmk.10.11.2011 https://hcservices.ecourts.gov.in/hcservices/