(Prayer: Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908, to set aside the judgment and decree passed in A.S.No. 164 of 2007 dated 18.08.2008 on the file of the Principal sub-Court, Trichy, confirming the judgment and decree passed in O.S.No.148 of 2003 on the file of the District Munsif Court, Musiri, dated 20.01.2007)
1. The first defendant in O.S.No.148 of 2003 on the file of the District Munsif Court, Tiruchirappalli, is the appellant before this Court. The first respondent in the second appeal, as the plaintiff has filed the suit in O.S.No. 148 of 2003 for declaration that the judgment and decree in O.S.No.170 of 1998 on the file of the District Munsif Court, Musiri, is not binding on her with regard to her right over the title in respect of the suit property and for consequential permanent injunction restraining the defendant from executing the decree in O.S.No.170 of 1998 or taking possession from the enjoyment of the plaintiff's aunt, namely, one Palaniammal and for other reliefs.
2. The case of the first respondent/plaintiff in the suit as per the plaint is as follows:
2.1. The suit property belongs to the plaintiff's father, namely, one Sillali and the suit property was, in fact, allotted in favour of the plaintiff's father. However, the first defendant - the brother of the plaintiff's father and one Palaniammal, his handicapped sister, were also residing in the suit property. The Tahsildar, Musiri, by mistake has included the name of the second defendant in the patta and the plaintiff has taken steps to delete the name of the second defendant from the revenue records. The plaintiff is enjoying the suit property through her aunt, Palaniammal for more than 15 years.
2.2. It is the further case of the plaintiff that the plaintiff's father after the death of her mother, one Lakshmi settled in Trichy and died on 05.12.1997 without contracting any second marriage. The plaintiff's father also died intestate. Hence, the plaintiff claims that she is the sole legal heir of her father Sillali and that she became the absolute owner of the suit property after the death of her father.
2.3. The first defendant in the suit had earlier filed a suit in O.S.No.170 of 1998 against the second defendant for bare injunction. The suit was contested by the second defendant by pleading a false case that the second defendant is the second wife of the plaintiff's father. Since the suit was filed only against the second defendant, the second defendant set up title in her favour that she is the the second wife of the plaintiff's father, by suppressing the material facts. The suit filed by the first defendant against the second defendant herein was allowed to be dismissed for default and the first defendant also collusively allowed the second defendant to file a counter claim and suffered a decree by remaining ex-parte in the counter claim. The counter claim was for recovery of possession and thus in O.S.No.170 of 1998, a decree in favour of second defendant was passed against the first defendant for recovery of possession.
2.4. Since the suit in O.S.No.170 of 1998 was filed without impleading the plaintiff who is the original owner of the suit property and nowhere in the previous proceedings, the plaintiff's right as owner of the suit property was referred to, the case of the plaintiff is that the previous suit is only a collusive one with an intention to grab the property from the plaintiff. The previous suit in O.S.No.170 of 1998, was filed without impleading necessary parties and hence the suit for recovery of possession by allowing the counter claim, is unsustainable by law, having regard to the admitted facts.
2.5. This suit was contested by the first defendant by filing a written statement. A reading of the written statement clearly shows that the first defendant is supporting the case of the plaintiff. Paragraphs 8, 9, 11, 14, 15 and 16 of the written statement of the first defendant speak volumes about the collusion between the plaintiff and the first defendant. The first defendant has also pleaded that he has entered into an agreement of sale with the plaintiff regarding the suit property. In the written statement, except stating that the first defendant and the family members are residing in the suit property for more than 30 years, he has not referred to any document of title to prove that the first defendant has title over the suit property.
2.6. The first defendant has also filed a counter claim praying for declaration that the suit property belongs to the first defendant exclusively and for consequential permanent injunction restraining the second defendant and their men from taking possession by executing the decree in O.S.No.170 of 1998 or by other means.
2.7. The trial Court dismissed the suit and rejected the counter claim. Aggrieved by the judgment and decree of the trial Court, the first defendant has preferred A.S.No.164 of 2007 and the lower appellate Court has also dismissed the appeal. Aggrieved by the same, the second appeal has been filed.
3. In the second appeal, the learned Counsel appearing for the appellant strenuously argued that the issue regarding title or the status of the second defendant as second wife of the plaintiff's father was not raised or framed in the earlier suit and that the findings in the said suit in O.S.No. 170 of 1998 will not operate as res judicata. The learned Counsel for the appellant also raised the same questions of law found in the memorandum of grounds and argued the appeal on other issues.
4. The plaintiff is the daughter of the original owner of the suit property, one Sillali. The plaintiff's mother is the first wife of the said Sillali. Though the relationship and the status of the second defendant as the second wife of the plaintiff's father was an issue, the lower appellate Court has categorically found that the second defendant is the second wife of the plaintiff's father. The first appellate Court has, therefore, given a finding that the plaintiff as well as the second defendant are the legal heirs of the original owner Sillali and that both are entitled to equal share in the suit property.
5. It is also brought to the notice of the lower appellate Court that the plaintiff did not file any appeal against the judgment and decree of the trial Court, despite the fact that her suit was dismissed. Hence, the lower appellate Court has given a finding that the judgment and decree of the trial Court has become final as against the plaintiff and the plaintiff is not entitled to dispute the right of the second defendant to claim 1/2 share in the suit property.
6. The lower appellate Court has rejected the arguments of the appellant that the findings in the previous suit in O.S.No.170 of 1998 is not binding. The independent claim of the first defendant is that he prescribed title over the property by adverse possession and that the judgment in the previous suit in O.S.No.170 of 1998 would not operate as res judicata as stated by the lower appellate Court.
7. From the pleadings in the previous suit and in the present suit, it can be seen that the first defendant has no consistent case with regard to the character of his possession. The learned Counsel for the appellant submits before this Court that the first defendant, who is the brother of the original owner Sillali was given the property by the father of the plaintiff to take care of the family. Having regard to the admitted facts, lack of pleading and proof and the findings of Courts below, the plea of adverse possession raised by defendant in un-sustainable in law.
8. This contention of the learned Counsel for the appellant goes contrary to the plea of adverse possession that was raised by the first defendant before the Courts below and in the previous suit. With regard to the status of the second defendant as the second wife of the original owner Sillali, the first defendant has not produced any independent witness, though he has filed the earlier suit against her and disputed her status. However, the second defendant has produced several documents to prove her status as second wife of plaintiff's father.
9. Considering the documents, the trial Court as well as the lower appellate Court have categorically found that the second defendant is the second wife of Sillali. Further, the findings of the trial Court with regard to the status of the second defendant is not challenged by the plaintiff, who is the competent person by filing an independent appeal before the lower Court. The first defendant who is a stranger to the family and who had already suffered a decree for possession in the earlier suit has no right to question the status of the second defendant in the present proceedings.
10. Having regard to the litigative status of the parties, the first defendant in the present suit cannot raise an issue which was also available to him in the previous proceedings which culminated in a decree against the appellant for recovery of possession. The first defendant admitted the case of the plaintiff and conveniently joined hands/issue with the plaintiff for the purpose of defeating the rights of the second defendant which has been settled in the earlier proceedings and it cannot be permitted in law.
11. The learned Counsel strenuously argued that the earlier suit in O.S.No.170 of 1998 is not a suit for declaration of title. In the absence of any issue with regard to the title and status of the second defendant as the second wife of the original owner, the learned Counsel submitted that the judgment and decree therein will not operate as res judicata. He relied upon the judgment of the Honourable Supreme Court in a case of Sheodan Singh - vs- Daryao Kunwar reported in AIR 1996 SCC 1332 (V 53 C 257) and in paragraph 13, it has been held as follows:-
13. Re.(iv): This brings us to the main point that has been urged in these appeals, namely, that the High Court had not heard and finally decided the appeals arising out of suits Nos. 77 and 91. One of the appeals was dismissed on the ground that it was filed beyond the period of limitation while the other appeal was dismissed on the ground that the appellant therein had not taken steps to print the records. It is therefore urged that the two appeals arising out of suits Nos. 77 and 91 had not been heard and finally decided by the High Court, and so the condition that the former suit must have been heard and finally decided was not satisfied in the present case. Reliance in this connection is placed on the well-settled principle that in order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits. Where, for example, the former suit was dismissed by the trial court for want of jurisdiction, or for default of plaintiff 's appearance, or on the grou nd of nonjoinder of parties or misjoinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letters of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional court fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any), the decision not being on the merits would not be res judicata in a subsequent suit. But none of these considerations apply in the present case, for the Additional Civil Judge decided all the four suits on the merits and decided the issue as to title on merits against the appellant and his father. It is true that the High Court dismissed the appeals arising out of suits Nos. 77 and 91 either on the ground that it was barred by limitation or on the ground that steps had not been taken for printing the records. Even so the fact remains that the result of the dismissal of the two appeals arising from suits Nos. 77 and 91 by the High Court on these grounds was that the decrees of the Additional Civil Judge who decided the issue as to title on merits stood confirmed by the order of the High Court. In such a case, even though the order of the High Court may itself not be on the merit the result of the High Court's decision is to confirm the decision on the issue of title which had been given on the merits by the Additional Civil Judge and thus in effect the High Court confirmed the decree of the trial court on the merits, whatever may be the reason for the dismissal of the appeals arising from suits Nos. 77 and 91. In these circumstances though the order of the High Court itself may not be on the merits, the decision of the High Court dismissing the appeals arising out of suits Nos. 77 and 91 was to uphold the decision on the merits as to issue of title and therefore it must be held that by dismissing the appeals arising out of suits Nos. 77 and 91 the High Court heard and finally decided the matter for it confirmed the judgment of the trial court on the issue of title arising between the parties and the decision of the trial court being on the merits the High Court's decision confirming that decision must also be deemed to be on the merits. To hold otherwise would make res judicata impossible in cases where the trial court decides the matter on merits but the appeal court dismisses the appeal on some preliminary ground thus confirming the decision of the trial court on the me- rits. It is well-settled that where a decree on the merits is appealed from, the decision of the trial court loses its character of finality and what was once res judicata again becomes res subjudice and it is the decree of the appeal court which will then be res judicata. But if the contention of the appellant were to be accepted and it is held that if the appeal court dismisses the appeal on any preliminary ground, like limitation or default in printing, thus confirming into the trial court's decision given on merits, the appeal court's decree cannot be res judicata, the result would be that even though the decision of the trial court given on the merits is confirmed by the dismis- sal of the appeal on a preliminary ground there can never be res judicata. We cannot therefore accept the contention that even though the trial court may have decided the matter on the merits there can be no res judicata if the appeal court dismisses the appeal on a preliminary ground without going into the merits, even though the result of the dismissal of the appeal by the appeal court is confirmation of the decision of the trial court given on the merits. Acceptance of such a proposition will mean that all that the losing party has to do to destroy the effect of a decision given by the trial court on the merits is to file an appeal and let that appeal be dismissed on some preliminary ground, with the result that the decision given on the merits also becomes useless as between the parties. We 30 9 are therefore of opinion that where a decision is given on the merits by the trial court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial court on the merits itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal.
12. The judgment cited by the learned Counsel for the appellant is not applicable to the facts of the case. From the judgment in O.S.No.170 of 1998, it is seen that the present appellant is the plaintiff. The suit was dismissed for default. However, a counter claim filed by the second defendant/second respondent herein was allowed and hence, the appellant suffered a decree for recovery of possession. The decree for recovery of possession in the previous suit is only on the assumption that the second respondent herein is the lawful owner of the suit property. It is well settled now that even an ex-parte decree in the former suit could be taken as final and it would operate an res judicata in the subsequent suit. It is not disputed that the matters directly and substantially in issue in the present suit and in the previous suit are constructively the same.
13. In such circumstances, it cannot be said that the decree passed in the counter claim preferred by the second defendant herein will not operate as res judicata as against the appellant and the appellant is estopped from disputing the title of the second defendant herein. It is to be noted that the plaintiff has not filed any appeal as against the decree, despite the fact that the suit was dismissed holding that she is only a co-sharer along with the second defendant and that the second defendant is the second wife of the plaintiff's father. After the decree in O.S.No.170 of 1998 was passed in favour of the second defendant, the second defendant is entitled to recover the property from the appellant herein. It is also admitted that possession was handed over to the second defendant through Court on 21.11.2009.
14. It is only to defeat the rights of the second defendant to get the property through process of law, the present second appeal has been preferred by the first defendant. Despite the fact that the first defendant had suffered a decree in O.S.No.170 of 1998, the first defendant is able to manage and resist the delivery of possession by setting up the present plaintiff. From the conduct of the appellant, this Court finds that no indulgence has to be shown to the appellant and this second appeal is liable to be dismissed with heavy costs. Therefore, no question of law, much less a substantial question of law is involved in this second appeal. The counter claim of appellant is nothing but an abuse of process of law.
15. Accordingly, the second appeal is dismissed with a cost of Rs. 1,000/- (Rupees One Thousand only), having regard to the inconsistent stand and conscious attempt made by the appellant in preventing/obstructing or interfering with the due process of law.