1. The plaintiff in O. S. 13 of 1967 on the file of the District Munsif, Padhmanabhapuram, is the appellant. The above suit is for a declaration of the plaintiff's title and possession of the suit properties (S. Nos. 140-B and 165-B) charged for the performance of Dharmams, and for issue of a permanent injunction against defendants 2 to 4 restraining them from interfering with the plaintiff's possession. The suit properties along with S. No. 165-A, according to the plaint, stood charged for the performance of Dharmam in possession of the plaintiff's forefathers, that after them, the plaintiff has been in enjoyment of the same, that the plaintiff originally leased out to the first defendant in 1962 item (1) 140-B, 165-B and 165-A that the patta for the said lands stood in the name of the Ambalam that the plaintiff has been enjoying the aforesaid properties doing the Dharmams out of the income therefrom, that the fourth defendant claiming to be a heir of Kaliamma Valliamma created a number of documents throwing a cloud on the plaintiff's possession and enjoyment, that the claim of the fourth defendant that she alone is the trustee in possession of the suit properties is false, that the further allegations that the plaintiff's grand-father was not related to the original owner Subramaniam, that the fourth defendant has no connection with Kaliamma Valliamma, that the decree obtained in O. S. 175 of 1090 filed by the father of the plaintiff in O. S. 13 of 1967, against the fourth defendant's being an influential man, has been manoeuvring to grab at the properties belonging to the Ambalam are all false and the present suit is filed for a declaration of the plaintiff's possession and enjoyment of the suit properties and for an injunction restraining the defendants from interfering with the plaintiff's possession.
2. Even before the filing of the above suit the first respondent, who claimed to be the plaintiff's lessee, had filed O. S. 189 of 1966 against the plaintiff and defendants 2 to 5 in O. S. 13 of 1967 for a declaration of his leasehold right over S.Nos. 165-A and 165-B and 140-B, which are covered by the present suit O. S. 13 of 1967. Defendants 1, 2, 5 and 6 in O. S. 13 of 1967 remained ex parte. The fourth, defendant contested the suit and his contentions are that he is the son of Kaliamma Valliamma, that the decree in O. S. 175 of 1090 is not collusive, that as heir of Kaliamma Valliamma he is entitled to the properties that he had executed a mortgage in favour of the fifth defendant who had assigned it to the second defendant, that later on he had given a superior mortgage in favour of the third defendant, who filed O. S. 191 of 1966 for redemption of the earlier mortgages from defendants 2 to 5 and while O. S. 191 of 1966 was pending the present suit was filed to delay the redemption of the properties by the third defendant in O. S. 191 of 1966, that the plaintiff in O. S. 175 of 1090 is the father of the present plaintiff in O. S. 13 of 1967 and his claim over the suit property was rejected and that the present suit (O. S. 13 of 1967) is barred by res judicata and the claim of the plaintiff having been negatived in various proceedings, the plaintiff is estopped from putting forward the same claim in the present suit and that the plaintiff has no cause of action and the suit is therefore not maintainable.
3. In O. S. 189 of 1966, the case of the plaintiff is similar to his defence in O. S. 13 of 1967. The first defendant in O. S. 189 of 1966 is the plaintiff in O. S. 13 of 1967 and his case in O. S. 189 of 1966 is similar to the plaint version in O. S. 13 of 1967. Both the suits were tried together and the trial court dismissed both the suits, holding that the plaintiff in O. S. No. 13 of 1967 has no possession of the suit properties, that he is not entitled to the injunction prayed for, that the suit, however, was not barred by res judicata as the prior suit O. S. 175 of 1090 was dismissed on the sole ground that the suit was barred by limitation without any consideration of the merits of the case.
4. In regard to O. S. 189 of 1966 the trial court held that the oral lease in favour of the plaintiff was not proved and that the plaintiff was not entitled to have his leasehold right to the suit properties declared as prayed for.
5. The plaintiff in O. S. 13 of 1967 filed A. S. 302 of 1967 and the plaintiff in O. S. 189 of 1966 is the appellant in A. S. 174 of 1968. The learned Judge dismissed both the appeals. The plaintiff in O. S. 13 of 1967 has filed the above second appeal.
6. The learned Counsel for the appellants contends--(1) that the plaintiff is in possession of the suit property as trustee of the 'Ambalam' to which the suit property belongs, that he is doing the services in connection with the Ambalam, spending moneys for the same from and out of the rents and profits from the suit properties, while the fourth defendant, who claims to be a trustee has set up title in himself in derogation of the title of the Ambalam. (2) That the mortgages set up by the fourth defendant, who claims to have performed the Dharmams are detrimental to the interest of the Ambalam; and (3) That the unimpeached revenue record show that the grants were made only to the Ambalam and that the pattas for the suit lands were wrongly entered in the name of the defendants' ancestors. On the other hand, the plaintiff is residing only in the Ambalam and is performing the Dharmam regularly and properly.
7. In order to appreciate the contentions of the parties it is necessary to refer to the prior proceedings. In 1083 patta for the suit lands would appear to have been granted in favour of one Esaki Chinnamma. In 1090, Subbandivelu, the grandfather of the plaintiff in O. S. 13 of 1967 filed O. S. 175 of 1090 seeking a declaration of the title and possession of the properties covered by that suit and to set aside the grant of patta, and the suit was dismissed on the short ground that the suit was filed beyond six years from the date of the issue of patta. The merits of the claims of the respective parties were not gone into in the above proceedings. The present suit, however, does not relate to patta; but is a suit for declaration of title of the Ambalam.
8. In other words, the question for decision is whether the plaintiff as trustee of the Ambalam is the person entitled to perform the dharmam from and out of the income of the charged properties which he has been performing all along from the properties in his possession or whether the fourth defendant has got a right to perform the Dharmam.
9. The correctness of the finding as to the question whether the decision in O. S. 175 of 1090 which was dismissed on a preliminary question of limitation would operate as res judicata was questioned. I shall first deal with this question before dealing with the merits.
10. The learned counsel for the appellant draws my attention to Munishi China Dandasi v. Munishi Pedda Tatiah, 41 MLJ 261 AIR 1921 Mad 279 in support of his contention that the dismissal of a prior application not on merits but on a technical ground of limitation will not operate as res judicata in a later suit based on the merits of the claim.
11. The next decision cited by the learned Counsel is one reported in Srikakula Chinna Venkatanarayana v. Pannapati Elias : AIR1954Mad1024 . The headnote therein runs as follows:--
'Where an application under Order 21, Rule 90 to set aside the sale was dismissed on the ground that it was filed after 30 days after the sale and that order was confirmed on appeal and subsequently court auction purchaser brought a suit for possession on the ground that he was dispossessed of the property purchased by him in which it was pleaded in defence that the court sale was illegal and void as there was no publication of the proclamation relating to the sale, while it was contended for the plaintiff that the defendants would be debarred from questioning the validity of the court sale, because of the prior proceedings on the principle of res judicata;
Held: as the prior application was dismissed only on the ground that it was out of time, the plea of invalidity of sale would not be barred by res judicata and could be entertained'.
12. Reference was also made to the decision of the Supreme Court in Sheodan Singh v. Daryao Kunwar : 3SCR300 . The above decisions are directly in point and following the sad decisions I hold that the present suit filed for declaration of title and possession is not barred by res judicata by reason of the dismissal of the prior suit, seeking to set aside the grant of patta, which was filed after six years from the date of the patta. I agree with the decisions of the courts below that the present suit is not barred by res judicata as the dismissal of the prior suit was decided not on merits and that no finality could attach to such decisions.
13. In considering the main question whether the plaintiff was in possession or the suit properties and has been performing the Dharmam the plaintiff has filed Exs. A-2 to A-5 and A-20 which are tax receipts standing in the name of Subbandivelu for the years 1940 to 1943, Exs. A-6 to A-10 which are the tax receipts standing in the name of Velukumarasean the father of the plaintiff for the years 1944 to 1961 and A-21 to A-25 for the period from 1962 to 1966 standing in the name of Velukrishnan and others. The other documents filed for the purpose of showing the plaintiff's possession are Exs. A-28 to A-30. The learned Judge without a proper appreciation of the document filed on behalf of the plaintiff held that the plaintiff had no possession, that his lessee, who is the plaintiff in O. S. 191 of 1966, has no possession of Item 1 of the suit properties. The learned Judge further found that the plaintiff's father was not the descendant of Subramaniam which was nobody's case. Ayyakutti's wife, Chinnamma, who was the fourth defendant's mother was given patta and the grant of patta was challenged in vain by the plaintiff's grandfather. The other findings, viz., that the plaintiff has no manner of right to function as trustee, that he is not the descendant of the original trustee, that the fourth defendant is the trustee and prior to him his mother was the trustee and that the fourth defendant has been performing the services were arrived at by the appellate Judge not as a result of consideration of the evidence available. Further, the effect of mortgages created by the fourth defendant has not been properly appreciated by the learned appellate Judge. In view of the unsatisfactory way in which the appeal has been disposed of, I consider that in the interest of justice the appeal should be re-heard.
14. In the result, I set aside the judgment and decree of the learned. District Judge, Kanyakumari, and allow the appeal and remit the appeal to the District Judge, Kanyakumari, for rehearing. The appellant is entitled to a refund of the court-fee paid on the memorandum of appeal. No order as to costs. No leave.
15. Appeal allowed.