SA/300/1993 of THANGAMMAL. Vs PAPATHI on 23 December 2005

J U D G M E N T

Defendants 1 to 3 in O.S.No.18 of 1987, a suit for partition,on the file of the Subordinate Judge, Nagapattinam, have filed thissecond appeal aggrieved by the concurrent findings of the Courtsbelow.

2. Appellants herein are defendants 1 to 3 and respondents 1and 2 are Plaintiffs in the suit.

3. The brief facts giving rise to filing of the original suitare as follows:

(a) The suit property to the extent of 16 cents in S.No.12/5in Velankanni Village originally belonged to the family of onePitchaikannu, predecessor of the plaintiffs. He had two sons byname Arumainathan and Manickam. Arumainathan had one son by nameSebastian (since dead) and two daughters Papathi and Anthoniammal,who are plaintiffs herein. The wife of Sebastian by nameThangammal, daughter Santhanamary and son Arokiasamy are defendants1 to 3 in the suit.

(b) The other son of Pitchaikannu by name Manickam had threesons and two daughters and one of the son by name Santhanasamy is4[th] defendant. The legal representatives of another son of Manickamby name Periyanayagasamy, are defendants 6 to 9. The wife and twosons and two daughters of Theethriyasamy, another son of Manickamare defendants 10 to 14.

(c) The case of the plaintiffs is that Arumainathan andManickam possessed 8 cents each in the suit property and there wasno division between them during their lifetime. As there was anattempt by the heirs of Manickam to oust the branch of Arumainathan,the legal heirs of Arumainathan including the plaintiff, filed asuit in O.S.No.62 of 1981 on the file of the District Munsif,Nagapattinam, for partition of their half share in the suit propertyand in that a preliminary decree was passed on 10.3.1982 as prayedfor. The appeal filed against the said decree was dismissed andhence the said preliminary decree became final. According to theplaintiffs, as it was felt that the matter could be amicablysettled, no final decree application was filed. It is the furthercase of the plaintiffs that taking advantage of the plaintiffs nothaving obtained the final decree, defendants 1 to 14 are attemptingto sell the whole suit property in favour of 16[th] defendant, who hasinterest in the property. As the defendants 1 to 3 are denying thelawful right of the plaintiffs in the suit property, the plaintiffshave filed the suit.

(d) In the written statement filed by defendants 1 to 3, theyadmit that a preliminary decree was passed in O.S.No.62 of 1981 andthe appeal preferred against the same in A.S.No.61 of 1982 was alsodismissed. The contention of these defendants is that theplaintiffs should have worked out their remedy in that suit itselfby filing final decree application and they should not have filedthe present suit. It is also contended that the suit property inO.S.No.62 of 1981 has been valued at Rs.4,800/-, whereas, the samesuit property has been valued at Rs.48,000/- in the present suit.The defendants also dispute the relationship of the plaintiffs inthat, Arumainathan had only one son by name Sebastian and theplaintiffs are only adopted daughters. The defendants also disputethat the plaintiffs are not in joint possession of the suit propertywith these defendants.

(e) Defendants 4 to 14 and 16 have filed a separate writtenstatement. According to these defendants, as the legal heirs ofArumainathan and Manickam orally divided their respective shares inthe property, no final decree petition was filed in O.S.No.62 of1981. As per the said partition, 8 cents in the northern portionwas allotted to the legal heirs of Arumainathan and 8 cents ofsouthern portion was allotted to the legal heirs of Manickam andsince then they were enjoying their respective portions, by puttingfence in between. The 16[th] defendant purchased the southern portionof 8 cents from the legal heirs of Manickam on 29.1.1987 for validconsideration. Hence even assuming the plaintiffs are entitled to2/3rd share, it is only in the northern portion of 8 cents and notin the entire 16 cents.

4. On the above pleadings, the trial Court framed two issuesand conducted trial. On the side of the plaintiffs, no witness wasexamined, but three documents have been marked as exhibits. On theside of the defendants, two witnesses have been examined and onedocument was marked. After considering the materials placed beforeit, the Trial Court passed a preliminary decree as prayed for,allotting 2/6th share in the entire 16 cents in favour of theplaintiffs.

5. Not satisfied with the said decree and judgment,defendants 1 to 3 preferred an appeal in A.S.No.32 of 1990 on thefile of the District Court, Nagapattinam. The first appellate Courtby its judgment dated 3.5.1991, dismissed the appeal. It is againstthe said concurrent findings of the Courts below, defendants 1 to3/appellants are before this Court.

6. When the second appeal came up for admission on 7.4.1993,the following substantial question of law was framed, "Is the suit maintainable when the partiescould have worked out their rights in theearlier suit O.S.No.62 of 1981 ?"

7. The learned counsel appearing for the appellants stressthe point that in view of the judgment in O.S.No.62 of 1981 andconfirmed in A.S.No.61 of 1982, which are marked as Ex.A-1 (judgmentin O.S.62/1981) and Ex.A-3 (decree in A.S.61/1982), the same bindthe parties herein, particularly when the subject matter of both thesuits is one and the same. In other words, the learned counselsubmits that in view of the earlier decree in O.S.No.62 of 1981, theprinciple of res judicata will come into play. The learned counselfurther points out that if at all the plaintiffs have any grievanceor right, it can be worked out only in the final decree proceedingsin O.S.No.62 of 1981 and a second suit on the very same subjectmatter is not maintainable. The learned counsel also submits thatthe Courts below have not even raised and decided the issue as towhether the judgment and decree in O.S.No.62 of 1981 disentitle theplaintiffs from filing the present suit.

8. On the other hand, the learned counsel for respondents 1and 2 as well as 15[th] respondent contends that the subsequent suitis maintainable even in spite of the preliminary decree passed inthe earlier suit. He also submits that the plaintiffs and theirpredecessors felt that the matter could be amicably settled betweenthe parties even without obtaining final decree, but as thedefendants 1 to 3 are now denying the right of the plaintiffs in thesuit property, they filed the present suit.

9. I have considered the rival submissions made by thelearned counsel on either side. The point in issue is whether thejudgment and decree made in O.S.No.62 of 1981 and confirmed inA.S.No.32 of 1990 settles the rights of the parties and whether thesubsequent suit in O.S.No.18 of 1987 is not maintainable on theprinciple of res judicata. At this stage, it is useful to referSection 11 of Code of Civil Procedure, which reads thus, "11. Res judicata.- No Court shall try any suitor issue in which the matter directly andsubstantially in issue has been directly andsubstantially in issue in a former suit between thesame parties, or between parties under whom they orany of them claim, litigating under the same title,in a Court competent to try such subsequent suit orthe suit in which such issue has been subsequentlyraised, and has been heard and finally decided bysuch Court.

Explanation I: The expression "former suit"shall denote a suit which has been decided prior tothe suit in question whether or not it was institutedprior thereto......"

In my opinion, the Courts below have failed to advert to this aspectand simply stated that new parties are added in the suit. In factthere is no new party added, but only the legal heirs/personsclaiming through the original parties are added in the subsequentsuit. The Apex Court in the decision reported in AIR 1979 SC 551(Ishwardas v. State of M.P.) in paragraph 6 held as under, "... In order to sustain the plea of resjudicata it is not necessary that all the parties tothe two litigations must be common. All that isnecessary is that the issue should be between thesame parties or between parties under whom they orany of them claim. ..."

In yet another earlier decision reported in AIR 1977 SC 1680 (Stateof U.P. v. Nawab Hussain), the Apex Court in para 8 held thus,"It is not in controversy before us that therespondent did not raise the plea, in the writpetition which had been filed in the High Court, thatby virtue of Cl (1) of Art.311 of the Constitution hecould not be dismissed by the Deputy InspectorGeneral of Police as he had been appointed by theInspector general of Police. It is also not incontroversy that that was an important plea which waswithin the knowledge of the respondent and could wellhave been taken in the writ petition, but hecontended himself by raising the other pleas that hewas not afforded a reasonable opportunity to meet thecase against him in the departmental inquiry and thatthe action taken against him was mala fide. It wastherefore not permissible for him to challenge hisdismissal, in the subsequent suit, on the otherground that he had been dismissed by an authoritysubordinate to that by which he was appointed. Thatwas clearly barred by the principle of constructiveres judicata and the High Court erred in taking acontrary view."

In view of the above, I hold that the reasonings given by the Courtsbelow for decreeing the suit are unsustainable.

10. Let us now consider the following decisions relied on bythe learned counsel for the appellants.

https://hcservices.ecourts.gov.in/hcservices/

(i) In the decision reported in AIR 1963 SC 992 (Venkata ReddyV. Pethi Reddy), the Honourable Supreme Court in paragraph 6 heldthat even a preliminary decree for partition is a final decision andit is no longer open to question by either party except in anappeal, review or revision petition as provided by law.(ii) In AIR 1986 MADRAS 367 (A.Jayaraj V. A.Kumaravel), inparagraph 4 of the Judgment this Court held that it is well settledthat the rights of the parties in a partition action should besettled in that action only and none of them should be driven to adifferent action.

11. The learned counsel also placed reliance on the decisionsreported in 1999 (1) CTC 529 (K.Subramaniam Naidu V. T.N.Rajendran);2000 (1) CTC 654 (Siddha Padayachi V.K. v. Indian Bank, ShevapetBranch); and 2000(3) CTC 193 (Hasan Abubucker V. Kottikulam St.,Mohideen Pallivasal Therku Mohideen Pallivasal) wherein this Courton earlier occasions categorically held that in case of omission toconsider the vital evidence or the relevant provisions of law, theHigh Court can rectify the mistake committed by the lower Courts,under Section 100 CPC. The said dictum is reiterated in the recentdecision of the Supreme Court reported in 2005 (4) Law Weekly 734(Ramlal & another v. Phagua & others). Relevant para 19 of theJudgment reads thus, "19. 1) Mohan Lal vs. Nihal Singh, AIR 2001 SC2942

In the instant case, the trial Court dismissedthe suit for the reasons recorded therein on thebasis of the record and oral evidence. The lowerAppellate Court, as noticed earlier, has notconsidered oral and documentary evidence properly.The lower Appellate Court which is the final Court offact mechanically confirmed the findings of the trialCourt and upheld the judgment of the trial Courtdismissing the suit. The High Court for the cogentand convincing reasons recorded in the judgment hasrightly interfered with the concurrent findings ofboth the Courts. In our view, both the lower courtshave concurrently erred in not appreciating the oraland documentary evidence properly and, therefore, theHigh Court is at liberty to re-appreciate theevidence and record its own conclusion for reversingthe orders passed by the lower Court. The judgmentof this Court in the case Mohan Lal vs. Nihal Singh(Supra) cited by the learned counsel for theappellant will not be of any assistance to theappellant herein.2)ThiagarajanandOthersvs.SriVenugopalaswamy B. Koil and Others, (2004)5 SCC 762In the instant case, the High Court has framed asubstantial question of law as extracted in

paragraphs (supra). Learned counsel for theappellants submitted that the High Court has notframed any other substantial question of law at thetime of hearing except framed at the stage ofadmission. Sub-section 5 of Section 100 says thatthe appeal shall be heard on the question soformulated and the respondent shall at the hearing ofthe appeal be allowed to argue that the case does notinvolve such a question. The proviso states thatnothing in this sub-section shall be deemed to takeaway or abridge the power of the Court to hear forreasons to be recorded, the appeal on any othersubstantial question of law not formulated by it, ifit is specified that the case involves such question.As could be seen from the High Court records, noattempt was ever made by counsel for the appellantsto formulate any other substantial question of law atthe time of hearing. Therefore, the case ofThiagarajan and Others vs. Sri Venugopalaswamy B.Koil and Others (supra) is not applicable to the caseon hand and is distinguishable on facts and law.3)Manikkoth Narayani Amma and Others vs.P.C.Kalliani Amma and Others, (2003) 9 SCC 245.4)Makhan Lal vs. Asharfi Lal and Others,(1997) 9 SCC 604.In view of our foregoing discussions, on factsand on law, we are of the opinion that these twojudgments will not be of any aid or assistance to theappellant.5)Smt. Indira Kaur and Others vs. Sheo LalKapoor, (1988) 2 SCC 488

The above judgment was cited by the learnedsenior counsel appearing for respondent No.1 inregard to the scope of Article 136. In the abovejudgment, this Court in para 7 held that Article 136does not expressly forge any fetters on the power ofthis Court to interfere with the concurrent findingsof fact. Though, this power has to be exercisedsparingly but if and when the Court is satisfied thatgrave injustice has been done it is not only theright but also the duty of the Court to reverse theerror and the injustice and to upset the findingnotwithstanding the fact that it has been affirmedearlier. This Court also held that it is not thenumber of times that a finding has been reiteratedthat matters. What really matters is whether thefindings is manifestly unreasonable and unjust one inthe context of evidence on record. This judgmentsquarely applies to the case on hand. In the instantcase, the High Court has rightly exercised its right and discharged its duty to reverse the error andremoved the injustice done by the courts below. TheHigh Court is right in exercising its duty, rightlyso in interfering with an unreasonable and unjustfindings by both the Courts below."

12. Applying the above principles laid down by the HonourableSupreme Court and by this Court, I am of the considered view thatthe judgment in O.S.No.62 of 1981 binds the parties in O.S.No.18 of1987 and therefore the said suit in O.S.No.18 of 1987 is notmaintainable. The earlier decree in O.S.No.62 of 1981 on the fileof the District Munsif Court, Nagapattinam having become final, itis binding on the plaintiffs as well as defendants and it is forthe parties to file appropriate application for obtaining finaldecree in the said suit and work out their remedies therein.

13. In view of the above findings, the suit in O.S.No.18 of1987 is dismissed and the judgment and decree passed by the Courtsbelow are hereby set aside. It is open to the parties to fileproper application for obtaining final decree in O.S.No.62 of 1981and in such event, the same may be considered by the trial Court inthe light of pendency of this proceeding and in accordance with law.

14. The second appeal is allowed accordingly. No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.

1. The District Judge, Nagapattinam District.2.The Sub-Judge, Nagapattinam.3. The District Munsif, Nagapattinam4. The Record Keeper,V.R. Section, High Court, Madras1 cc to Mr.A.S. Narasimhan, Advocate, SR. 508341 cc to Mr.R. Thirugnanam, Advocate, SR. 128