Case: GOVINDAMMAL (DEAD) BY LRS. AND ORS Vs. VAIDIYANATHAN AND ORS

1. The legal representatives of the original defendant in O.S No.45/85 on the file of the Subordinate Judge, Cuddalore are the appellants before this Court. For the sake of convenience, the parties are referred by their status before the Trial Courtsuit was filed by the respondents herein, seeking a declaration that A schedule property (as described in the plaint) belongs to them or in the alternative for partition of half share in B schedule property (as described in the plaint) of which A schedule isa part. According to the plaintiffs (respondents herein), the properties originally belonged to two brothers namely, Pazanivelu Mudaliar and Chokalingam; Pazanivelu Mudaliar had two sons, namely, Narayanaswamy Mudaliar and Manickam. Narayanaswamy had a son named Gnanasambandam Mudaliar. The plaintiffs are thegrandsons of Narayanaswamy being the sons of Gnanasambandam. On 21.7.1912, partition took place between the branches of Pazanivelu and Chokalingam, and the same was signed by Narayanaswamy (since Pazanivelu had expired by then) and Chokalingam. In the said partition, A schedule property was allotted to Narayanaswamy and Manickam (who was then a minor), while the remaining 50% of the property left in B schedule was allotted to Chokalingam. It is relevant to note here itself that the suit property totally measured 3.18 acres at the time of partition in 1912, which subsequently got reduced to 2.72 acres in view of natural calamities, sale of certain portions and resettlement etc. Thus, the share of each branch was reduced to 1.36 acres each. The property consisted of Survey No. 67. Narayanaswamy and Manickam being the sons of Pazanivelu Mudaliar partitioned the property allotted to the branch of their father in such a manner so as to allot the entire A Schedule property to Manickam, on 5.4.1933, as per Exhibit A-39. The said property allotted in favour of Manickam was sold by him to one Appavu Mudaliar on 11.9.1940 as per ExhibitA-2. On 26.2.1942, theproperty purchased by AppavuMudaliar was in turn sold in favour of Sambandam Mudaliar. On 9.2.1950, the property purchased by Sambandam Mudaliar was sold to Narayanaswamy Mudaliar as per Exhibit A-3. After the death of NarayanaswamyMudaliar in the year 1965, the plaintiffs being the grandsons of Narayanaswamy Mudaliar inherited the whole A schedule propertyMeanwhile, Chokalingams half share was sold in a court auction on 21.12.1933 and was purchased by the original defendants father. There are no records to show that there was delivery of possession pursuant to the court auction sale; at any rate, the court sale could not confer more than the right, title and interestof the judgment debtor, namely Chokalingams half interest, which is 1.36 acres out of 2.72 acres recorded in the resettlement. Unfortunately, the entire B Schedule property which was partitioned in 1912 was never demarcated inasmuch as the same was always used as a house site. Sincethe resettlement proceedings in 1976, this property comprises 3 pattas numbers. The plaintiffs father had also been paying house tax. The defendant had no right in A schedule property. The defendants father and consequently the defendant did not have any right over the property in excess of Chokalingams half share, i.e.,1.36 acres. On 5.11.1978, in the partition in the family of the plaintiffs and their father, the A Schedule property was allotted to Plaintiff No.2 as per Exhibit A-40. Since the defendant attempted to trespass into the south western portion of the suit property (which falls under A Schedule) and prevented the plaintiffs from enjoying the same, the suit came to be filedThe case of the defendant is that his father purchased the entireextent of Survey Number 67, i.e., 2.72 acres in a court auction (in execution of the decree in O.S.No. 20 of 1918) on 21.12.1933, which was confirmed on 29.9.1934, and possession was delivered to him; after his fathers death in 1940, the defendant continued to be in possession. In the year 1975, Shri Puthumariamman Temple, Kurinjipadi filed O.S. No. 66 of 1975 against the defendant and Gnanasambandam Mudaliar (the father of the plaintiffs) in respect of the said property. The said suit came tobe dismissed, holding that the temple had no right to the property and that the defendant and his father were entitled to the same. The appeal filed by the temple also came to be dismissed. Thus, the title of the defendant and his father was upheld in the litigation wherein the father of the plaintiffs was a co-defendant along with the defendant as stated above. Subsequently, the SKV High School filed O.S. No. 1289/1974 for declaration of its title over the property, claiming that it had got title over the entire property. The defendantfiled O.S. No. 1290/1974 against the SKV High School. The father of the plaintiffs was one of the defendants in O.S. No.1289/1974 filed by the school whereas he was not made party by the defendant in O.S. No.1290/1974. After joint trial in both the suits, the suit filed by the present defendant was decreed declaring his title over the suit property, and the suit filed by the school was dismissed. Such judgment of the Trial Court was confirmed in appeal. The defendant denied the validity of the subsequent sale deeds dated 11.9.1940 and 9.2.1950 in his written statement. Even the later partition dated 5.11.1978 was attacked as a fraudulent and collusive transaction. The defendant claimed to be in exclusive possession of the entire property from the date of the court auction, i.e., from 1933 continuously, and that he had acquired right by adverse possession. It was also pleaded by the defendant that the defendants title has already been declared twice by the Civil Court as mentioned supra and therefore, the present suit is barred by the principles of res judicata. The claim of joint possession by the plaintiffs was denied by the defendant3. On a full-fledged trial, the Trial Court decreed the suit and granted the alternative relief of partition. In the first appeal filed by the defendant, the learned Single Judge reversed the judgment of the Trial Court and dismissed the suit. The Letters Patent Appeal filed by the plaintiffs was allowed by the impugned judgment and consequently the suit came to be decreed by the Division Bench of the High Court.

Reasoning: 6. The suit out of which this appeal arises is not a mere suit for partition. On the other hand, primarily it is a suit for declaration of the plaintiffs title to the suit property, i.e., A schedule property andfor permanent injunction restraining the defendants from entering the possession of A schedule property, which is nothing but 50% of the entire B Schedule property which fell to the share of Narayanaswamy Mudaliar. Alternatively, it was prayed by the plaintiffs that if the plaintiffs and defendant are found to be in joint possession theybe granted the relief of partition and separate possession to the plaintiffs half share in B schedule property. It is relevant to note here itself that B schedule property measures 2.72 acres in its entirety, whereas A schedule property is 50% of B schedule property, measuring 1.36 acres which fell to the share of Narayanaswamy Mudaliar in the partition of 1912. Since the partition had taken place in 1912 between Chokalingam and Narayanswamy Mudaliar (being the son of Pazanivelu), and as the plaintiffs inherited the property from Narayanaswamy Mudaliar, they are entitled to 50% of the share in B schedule property. The Division Bench has rightly held that the plaintiffs are entitled to A Schedule property, which is the half share allotted to their branch in the partition of 1912, out of B Schedule property. Thus, the question of maintainability raised by the defendant fails7. The plaintiffs need not question the auction sale which was conducted in 1933 inasmuch as, firstly, they are not parties to those proceedings including the execution proceedings and court auction. Secondly, by virtue of auction sale, the purchaser would get only the share vested with Chokalingam inasmuch as Chokalingam alone was the judgment debtor. The property which is not owned by the judgment debtor could not be sold at all and therefore, even assuming that the sale certificate is wrongly issued inrespect of the entire property, the same does not bind the plaintiffs inasmuch they continued to be the owner of 50% of the whole of the property8. It is no doubt true that in the suit filed by the temple against the father of the defendant, the father of the plaintiffs was also arrayed as Defendant No. 2. It is also not in dispute that the father of the plaintiffs and the father of the defendant by engaging a common advocate filed a common written statement pleading that the temple was not the owner of the property and that Defendant No.1 was the owner of the property. It is also not in dispute that the father of the plaintiffs admitted in the said suit that Defendant No.1 in the said suit, namely, the father of the defendant herein, was the owner of the property. So also, in the suit filed by the school, the father of the plaintiffs was also arrayed as one of the defendants along with the father of the defendant. In the said suit also, a common written statement was filed. Even in the suit filed by the school,the defendants therein, i.e., the father of the plaintiffs herein and father of the defendant herein jointly pleaded that the school was not the owner of the property and that the defendants were the owners. Both the suits filed by the temple and the school came to be dismissed, holding that the temple as well as the school were not the owners of the property. From the aforementioned facts and the pleadings as well as the evidence recorded in the said suits, it is amply clear that there was no dispute inter se between the defendants. In other words, there was no dispute whatsoever regarding title between the father of the plaintiffs and the father of the defendant in those two suits. The main question to be decided in those suits was whether the third parties who had claimed rights were entitled the property. Since the question of inter se title between the defendants father and the plaintiffs father was not in issue and was also not required to be decided in the disputes then raised, obviously, the doctrine of res judicata cannot be applied between such co-defendants9. However, there exist certain situations in which principles of res judicatamay apply as between co-defendants. This has been recognized by the English Courts as well as our Courts for more than a century. The requisite conditions to apply the principle of resjudicata as between co-defendants are that (a) there must be conflict of interest between the defendants concerned, (b) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims and (c) the question between the defendants must have been finally decided. All the three requisite conditions are absent in the matter on hand. Firstly, there was no conflict of interest between the defendants in the suits filed by the temple and theschool. Secondly, since there was no conflict, it was not necessary to decide any conflict between the defendants in those suits in order to give relief to the temple or the school, which were the plaintiffs. On the other hand, the father of the plaintiffs and the father of the defendant were colluding in those suits filed by Temple and School. Both of them unitedly opposed those suits. In view of the same, the principles of res judicata would not apply.In the case of Md. Saadat Ali (supra), though the first and third conditions were fulfilled, the second condition was not fulfilled and hence it was held that the principles of res judicata will not apply, meaning thereby that all the three conditions should be fulfilled in order to apply the principles of res judicata12. It is true that under Section 11 of the CPC, when the matter has been directly or substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, the decree in the former suit would operate asres judicata between the plaintiff and the defendant or as between the co-plaintiffs or co-defendants. For instance, if in a suit by P against D1 and D2, the matter is directly and substantially in issue between D1 and D2 and adjudication upon that matter was necessary to determine the suit to grant relief to P, the adjudication would operate as res judicata in subsequent suits between D1 and D2 in which either of them is plaintiff or defendant.In other words, if a plaintiff cannot get his claimed relief without trying and deciding a case between the co-defendants, the court will try and decide the case in its entirety including the conflict of interest between the co-defendants and the co- defendants will be bound by the decree. But if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not bebound as between each other.13. Coming to the questionof estoppel as arguedby the defendants counsel based on the admission of the father of the plaintiffs in the pleadings and in his deposition regarding the title of the father of the defendant in the aforementioned earlier litigations, it is no doubt true that an admission is the best piece of evidence. However, an admission can always be explained, unless such an admission gives rise to the principle of estoppel. The principle of estoppel could have arisen if the father of the defendant had acted to his detriment on the basis of the representation made by the plaintiffs father as the basic requirement for attracting the principle of estoppel, is that the person to whom the representation has been made must have acted on the basis of such representation, and particularly to his own detriment. In the matter on hand, the father of the defendant knew about the correct position on facts and he very well knew that he was the owner to the extent of 50% of the property only, and as he did not act to his detriment, the question of estoppel does not arise. As mentioned supra, it is well settled that in an auction purchase, the auction purchaser does not acquire any right over the property higher than that of the judgment debtor. Since the principles of res judicata between co-defendants are not applicable in this case, and since a mere admission does not operate as an estoppel, such admission does not create or pass any title in favour of the defendants father and consequently to the defendant. On the other hand, it is apparent that the defendants father had right over only half of the property in question, which he had purchased14. The Division Bench has rightly negated the contention of the defendant relating to adverse possession. From the evidence on record, the trial Court and the Division Bench of the High Court have come to the conclusion that the defendant has failed to prove that he and his predecessor-in-interest had possession over the entireproperty to the exclusion of the plaintiffs and their predecessor. No material is found on record which emphatically discloses that the physical delivery of possession of the property was given to the auction purchaser by evicting or in exclusion of all the persons including the plaintiffs father and the plaintiffs. In the absence of such material, the Trial Court and the Division Bench have rightly concluded that there was symbolic delivery of possession in favour of the auction purchaser. However, the subsequent documents show joint possession of the plaintiffs and the defendant. Even now the names of both the parties are found in the revenue records. The documents do not show exclusive possession of either of the parties, but would indicate that they are in joint possession. Exhibits A-7, A-8 and A-9 are the pattas which disclose the names of both the parties in the revenue records. Even the house tax receipts are in the name of the plaintiffs predecessor. A schedule property has already been subjected to partition inter se among the plaintiffs after the death of Narayanswamy Mudaliar and the allotment of property in question, i.e. A Schedule has been made in favour of the second plaintiff as perExhibit A-40. The aforementioned records and certain other material on record would negative the contention of the defendant relating to adverse possession. The plaintiffs have proved satisfactorily that they are the owners of A Schedule property, i.e., 50% of the property partitioned in 1912, which had ultimately fallen in the share of Mr. Narayanaswamy (grandfather of plaintiffs) as mentioned supra.