1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03.02.2011 CORAM: THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR S.A.(MD).No.43 of 2011 and M.P(MD)No.1 of 2011 1.M.S.Subbulakshmi 2.M.M.Samy @ Madasamy .. Appellants/Appellants/Defendants .vs. 1.P.Vijayalakshmi 2.P.Kottiyappan 3.P.Uchimakali 4.P.Sivan Andiappan ..Respondents/Respondents/Plaintiffs PRAYER: Second Appeal filed under Section 100 of Civil Procedure Code to set aside the judgement and decree dated 02.06.2010, made in A.S.No.31 of 2010, on the file of the Principal Sub Court, Tirunelveli confirming the judgment and decree dated 17.09.2009 made in O.S.No.220 of 2003, on the file of the I Additional District Munsif Court, Tirunelveli. For Appellants : Mr.S.P.Maharajan JUDGMENT The defendants, who suffered a decree for permanent injunction in the hands of the trial Court in O.S.No.220 of 2003 and unsuccessfully prosecuted an appeal before the appellate Court in A.S.No.31 of 2010 have approached this Court by way of the present Second Appeal. 2. The arguments advanced by Mr.P.Maharajan, the learned counsel for the appellants were heard. The judgments and decrees of the Courts below and the other documents filed in the form of typed set of papers were also perused. 3. The suit was originally filed by two persons by names Sivanthinayagam Pillai and Petchimuthu Thevar figuring as plaintiffs 1 and 2. The second plaintiff Petchimuthu Thevar claimed to have purchased the suit property under a sale deed dated 14.05.1999 from Sivanthinayagam Pillai, the first plaintiff. During the pendency of the suit, Sivanthinayagam Pillai and Petchimuthu Thevar passed away. Legal Representatives of Sivanthinayagam Pillai were not impleaded because even as per the plaint averments he was no longer the owner of the suit property and he was not in possession and enjoyment of the suit property after the sale deed executed by him in favour of Petchimuthu Thevar. Hence, the respondents 1 to 4 herein were impleaded as the legal representatives of the deceased Second Plaintiff Petchimuthu Thevar and were arrayed as plaintiffs 3 to 6. https://hcservices.ecourts.gov.in/hcservices/ 2 4. The defence of the appellants herein/ defendants is that the suit property originally belonged to four brothers, namely Vengidachalam Pillai, Sangarasubbhu Pillai, Annasathiram Pillai and Paramasivan Pillai, from whom one Ramiah Reddiar purchased the same by way of a sale deed dated 02.01.1970; that when the possession of the said Ramiah Reddiar was sought to be disturbed by Petchimuthu Thevar, he filed a suit on the file of the Principal District Munsif, Tirunelveli in O.S.No.733 of 1999 for permanent injunction; that the said Petchimuthu Thevar, even though entered appearance in the said suit and filed a counter statement in the interlocutory application which was filed therein and the same was later on adopted as written statement, failed to contest the suit subsequently resulting in an exparte decree dated 12.03.2001 in favour of the above said Ramiah Reddiar; that after the passing of the said exparte decree, Ramiah Reddiar died and the appellants herein/defendants purchased the property from his legal heirs on 31.05.2001 and that having suffered such a decree, Petchimuthu Thevar chose to get a sale deed from Sivanthinayagam Pillai and both of them collusively filed the suit against the appellants herein/defendants herein for injunction. 5. The plea that the appellants/defendants have taken is that the suit is barred by the principle of res judicata; that the decree in the previous suit will make the possession and enjoyment of the suit property by original plaintiffs and later on by the subsequently impleaded plaintiffs improbable, as possession was found to be with the predecessor in title of the appellants herein/ defendants. 6. The trial Court framed necessary issues. One such issue was whether the suit of the original plaintiffs in the present suit was barred by the principle of estoppel (Kuz;jil) in view of the decree passed in the earlier suit, namely O.S.No.733 of 1999. Of course, the said issue was wrongly framed referring to the “principle of estoppel” rather than the principle of res judicata under Section 11 of Civil Procedure Code. However, during the course of recitals and discussions regarding the issue, the trial Court corrected it and mentioned clearly that the issue was whether the present suit would stand barred by the principle of res judicata under Section 11 of the Civil Procedure Code in view of the decree passed in the earlier suit, namely O.S.No.733 of 1999. 7. In an attempt to arrive a decision regarding the said issue, the trial Court dealt with the evidence adduced on both sides in extenso and arrived at a conclusion that the property regarding which the previous suit was filed and the present suit property were not one and the same and were distinct and different property. In order to arrive at such a conclusion, the learned trial Judge referred to the description of property found in the decree passed in the earlier suit, certified copies of which have been produced by both sides as Exs.A13 and B.4 respectively and the description found in the present case and also in the sale deed dated 14.05.1999 marked as Ex.A8 under which the present property is claimed to have been purchased by the deceased second plaintiff Petchimuthu Thevar. The learned https://hcservices.ecourts.gov.in/hcservices/ 3 trial Judge also referred to the parent deeds produced on behalf of the plaintiffs and the description of property found in Ex.B.4, namely the decree in the previous suit to find if there is correlation with the description of property found in the parent deed of the appellants/ plaintiffs, namely the sale deed in the name of Ramaiah Reddiar dated 01.01.1970, which has been marked as Ex.B.3. 8. After considering the description of property with reference to survey number, boundaries and extent found in both the set of documents produced by the plaintiffs and the defendants respectively, the trial Court came to the conclusion that both properties could not be one and the same. The trial Court has also observed that not only the boundaries differ, but also the extent of the properties differ. The same happened to be the reason why the trial Court gave a finding that the suit property of the previous suit, namely O.S.No.733 of 1999 was different from the present suit property, namely suit property of O.S.No.220 of 2003. 9. A clear stand was taken by the plaintiffs in their evidence that the suit property of the previous suit had nothing to do with the suit property of the present suit and both were different. That is the reason why, the trial Court had to consider the above said evidence to arrive at such a conclusion indicated supra. Even after eliciting a negative answer to a suggestion put to P.W.1 for the suggestion that both the properties were one and the same, the appellants herein/defendants have not chosen to adduce sufficient evidence explaining how the changes in the boundaries have occurred to show that the subject matter of previous suit and the subject matter of the present suit are one and the same. It was also pointed by the trial Court that the extent of the property, the subject matter of the previous suit was 1985.16 square feet, whereas the extent of the present suit property is 1247.81 square feet, which is about 700 square feet less than the extent of the property which was the subject matter of the earlier suit. Based on these factors, the Court drew an inference and came to the conclusion that both the properties could not be one and the same. 10. Even after passing of such a judgment and decree by the trial Court, which made the appellants herein to prefer an appeal before the first appellate Court, they have not to adduce additional evidence to show that the difference in the boundaries occurred due to subsequent changes in the ownership of the surrounding lands or that the difference in extent was due to the fact that the plaintiffs have chosen to file the suit in respect of only a portion of the suit property which was the subject matter of the earlier suit. The appellants also have not chosen to prove either before the trial Court or before the first appellate Court that both the properties are identical in accordance with the description found in Ex.B.3 and B.4 on the one hand and Ex.A.8 and the plaint on the other hand. They have also failed to show that either both are one and the same or that one forms part of the other. As the appellants have not done so before the first appellate Court also, the first appellate Court also assigned reasons similar to those assigned https://hcservices.ecourts.gov.in/hcservices/ 4 by the trial Court, concurring with the finding of the trial Court that the properties are not one and the same and they are different and that hence, the bar of res judicata provided under Section 11 of Civil Procedure Code was not attracted. 11. So far as the question of possession is concerned, the contention of the appellants happened to be that since an earlier decree was passed injuncting the second plaintiff from interfering with the possession of Ramiah Reddiar, predecessor in title of the appellants, such possession having already been recognized by a Court in a judicial proceedings would not have passed on to the plaintiffs. But the finding that the subject matter of the earlier suit and the subject matter of the present suit are not one and the same and are different shall be enough to discountenance such a contention also. Therefore, this Court is not able to find any defect or infirmity in the findings regarding res judicata and possession, concurrently made by both the Courts below. Such a finding of fact cannot be termed perverse. 12. For all the reasons stated above, this Court comes to the conclusion that no substantial question of law is proved to have involved in the Second Appeal; that the appellants have tried to project a question of fact as substantial question of law; that even such a question of fact has not been proved to be perverse; that no substantial question of law is proved to have decided erroneously by the Courts below and that therefore, there is no scope for interference with the concurrent judgments of the Courts below and the appeal deserves to be dismissed at the stage of admission itself. 13. Accordingly, the Second Appeal is dismissed. Consequently, connected M.P.(MD) No. 1 of 2011 is also dismissed. However, there shall be no order as to costs as the Second Appeal is dismissed at the admission stage itself. Sd/- Deputy Registrar(LA) /True Copy/ Assistant Registrar To 1. The Principal Subordinate Judge, Tirunelveli. 2. The I Additional District Munsif, Tiruenveli. +One Cc to Mr.S.P.Maharajan, Advocate, SR.No.4379 sj rl/4c – 31.5.2011 S.A.(MD).No.43 of 2011 and M.P(MD)No.1 of 2011 03.02.2011 https://hcservices.ecourts.gov.in/hcservices/