Gangai Vinayagar Temple & Anr vs Meenakshi Ammal & Ors

2. The uncontroverted facts are that the husband of the first Respondent/Tenants (namely, Kannaiya Chettiar along with another person Venkatarama Keddiar) the suit land on lease from Sethurama Chettiar on 1.3.1953 for a period of 12 years on a monthly rent of Rs.150/-. The Tenants were permitted to construct a cinema theatre on the suit land at their own cost, which they have done in the name and style of ‘Raja Talkies’, which is still in existence. In 1959 one of the partners died, resulting in the husband of Respondent No.1 assuming sole proprietorship of ‘Raja Talkies’. On 8.11.1967 a fresh Registered Notaire Lease Deed was executed for a period of 15 years commencing from 1.1.1968 between the husband of Respondent No.1 and the Appellant Trust, Gangai Vinayagar Temple through its Trustee’s President namely, Shri Sethurama Chettiar. Consequent on the death of the husband of Respondent No.1, she continued as the tenant along with her children as legal representatives of her late husband. It is also not in dispute that the Trust sold the suit property to Sarvashri P.Lakshamanan, P.Vadivelu and P.Saibabha who were impleaded by the Tenants as Defendants 7 to 9 in O.S. 5/78. The Tenants were informed of this transaction on 14.10.1976, calling upon them to attorn to the new owners. The repercussion was that in 1976 itself, the Tenants filed O.S.5/78 (re-numbered) in which they had assailed the sale of the suit land on the predication that the legal formalities necessary for the transfer of trust property had not been adhered to as it was a Public Trust, and further that, subsequent to the aforementioned transaction, the Tenants (Plaintiffs in O.S.5/78) apprehended their dispossession therefrom at the hands of the Defendants, including Defendants 7 to 9 (hereinafter called ‘Transferees’). The Prayers have been reproduced infra. In this suit, the Trust as well as the Transferees pleaded in their respective Written Statements that they had neither threatened nor harboured any intention to dispossess the Tenants without due process of law.

3. The sequel of this first salvo of litigation was the filing of two suits by the Trust, being O.S.6/78 and O.S.7/78, claiming arrears of rent from the Tenants (Respondent Nos. 1 to 6 before us, in which the Transferees were not impleaded) pertaining to the period prior to the transfer of the suit lands by them to the Transferees. Despite the pleadings therein as mentioned above, O.S.5/78 came to be ‘dismissed’. O.S.6/78 was partially decreed; whilst O.S.7/78 was dismissed on the ground that the alleged claim of arrears of rent in this suit was not tenable as the said land was part of and encompassed in the suit land which was the subject matter of O.S.6/78 and, accordingly, the claim was covered and subsumed therein. The Tenants have not filed any appeal in respect of O.S.5/78 and O.S.7/78; and the Trust has not filed any appeal on the dismissal of their suit O.S.7/78. All three suits have been decided, after recording of common evidence, by a common Judgment passed on 6.11.1982 by the Court of 2nd Additional District Judge at Pondicherry. Pursuant to this Judgment three different decrees have been drawn.

Directing the defendants to pay to the plaintiff the costs of the suit; and Grant such other relief as this Honourable court may be pleased to order in the circumstances of the case.

In the result, the ample evidence produced by the defendant would prove that the suit property is the private property of Sethurama Chettiar and sale deed dated 30.6.76 in Ex.A.19 is valid and the defendants 7 to 9 are now the real owners of the property who are entitled to take possession of the property after expiry of the lease. In the result, the issues are answered accordingly.

In the result, O.S.5/78 is dismissed with cost. O.S.6/78 is decreed in part with cost as per the calculation above. Regarding O.S.7/78, since the court has held that the entire property is one, there cannot be any lease amount for the rear portion and it dismissed with cost.

The application of res judicata, so very often, conjures up controversies, as is evident from the fact that even in this Court divergent opinions were expressed by the two Judge Bench, leading to the necessity of referring the appeal to a Larger Bench. It was for this reason that we thought it appropriate to deal with the dispute in detail. It seems to us that had the decisions of the three Judge Bench in Lonankutty and Prabhu been brought to the attention of our Learned and Esteemed Brothers on the earlier occasion when this appeal was heard by two Judge Bench, the dichotomy in opinion would not have arisen. The outcome of the appeal before the High Court would have also shared a similar fate. On the foregoing analysis, especially the previous enunciation of law by three Co- ordinate Benches, we are in agreement with the opinion of our Learned Brother Asok Kumar Ganguly that the appeal calls to be allowed. We are of the opinion that having failed or neglected or concertedly avoided filing appeals against the decrees in O.S.5/78 and O.S.7/78 the cause of the Respondents/Tenants was permanently sealed and foreclosed since res judicata applied against them. We accordingly allow this Appeal but keeping the varying verdicts in view decline from making any order as to costs.

Hon'ble Mr. Justice Vikramajit Sen pronounced the judgment of the Bench comprising Hon'ble Mr. Justice Anil R. Dave, His Lordship and Hon'ble Mr. Justice Pinaki Chandra Ghose.

The appeal is allowed with no order as to costs in terms of the signed judgment.