(1) This second appeal has been preferred by the plaintiffs and arises out of a suit for declaration of their title to and for partition and separate possession of the eastern 3/4 the share in the plaint scheduled property and certain other reliefs. They succeeded in their claim in the District Munsif court, Kuzhithurai, but lost in appeal before the Subordinate Judge, Nagarcoil. The total extent of the suit property which goes under the name Panichathadi Nilam is 12 kurnies or 72 cents. The actual dispute is only in regard to one Kurni or 6 cents, the principal contestant being the third defendant, and the defence in the main is rested on the principle of constructive res judicate. The relevant facts may therefore be set out.
(2) The suit property, it is stated belonged to Munichara Matam in jenmi right and has been demised on Kanom by the Matam with the tarwad of defendants 1 to 3. The defendants' tarwad under Ex. H dated 30-9-1073, M. E. othied the western one-third of the property that is 4 kurnies in extent to the plaintiffs' ancestor for 3500 Fns. The plaintiffs were allotted the othi rights in their family partition. It has further been found that in the partition in the defendants' tarwad the suit property was allotted to the first defendant personally, as it had been acquired with his own funds in 1935 the jenom matom filed the suit, O. S. 880 of 1110, M. E. against the first defendant for arrears of michakaram and in execution of the decree in that suit brought the eastern 3/4th share of the suit property to sale. The 4th defendant in the present suit became the court auction purchaser of this eastern 3/4th share of 9 kurnies, Ex. D. dated 3-5-1116 M. E. being the sale certificate. Subsequent to the court auction sale, the present defendants 1 and 2 instituted the suit O. S. 989 of 1122 M. E. on the file of the Principal District Munsif Court, Kuzhithurai, for redemption of the othi evidenced by Ex. H. In that suit the present first plaintiff was impleaded as the 4th defendant, and the present second plaintiff as the 11th defendant. There were 21 defendants to that suit, defendants 1 to 16 were impleaded as representing the mortgagees and defendants 17 to 19, as persons in possession under them. The 20th defendant to the suit, the present contesting third defendant, a brother of defendant 1 was impleaded as a person having also a share in the mortgage. The present 4th defendant who had by then become the owner of 9 kurnies by purchase in court auction was impleaded only as a subsequent encumbrancer and shown as the 21st defendant. The mortgagees-defendants 1 to 16 as well as defendants 18, 19 and 21 were declared ex parte. There was a compromise with the 17th defendant and it was recorded that his contentions need not be considered in that suit. The 20th defendant, the present 3rd defendants, did not dispute the mortgage or his claim to the share in the mortgage right which appears to have been set out in the plaint. From the issues framed it seems as if a contention was raised that the mortgagee got possession of only three kurnies and not four kurnies under the othi. Without any discussion observing that the defendant was ex parte, redemption was ordered. The judgment provided that defendant 1 to 21 may draw out the balance of the mortgage amount of Rs.875. The plaint in that suit has not been exhibited. The present first plaintiff who had been impleaded as a mortgagee had filed his written statement in the suit in 1948; but later had been set ex parte. The court auction purchaser had been ex parte right through. Pending that suit under the sale deed. Ex. E. dated 21-12-1124 M. E. the present plaintiffs purchased the eastern 3/4th share of the suit property from the 4th defendant. The judgment in the redemption suit was subsequent, on 25-1-1951. The judgment and decree are exhibited as Exs. II and III.
It will be clear from the above narration of facts that the plaintiffs by their purchase from the 4th defendant are entitled to 9 kurnies in the east of the suit property in their own right. They had possession of 4 kurnies in the west as the mortgagees, the entire extent of the suit property being 12 kurnies. It follows that an extent of one kurni in the west out of the 9 kurnies which they had purchased from the 4th defendants should also be held to be subject to the othi of which redemption was decreed. It is this one kurni that is the subject of the present contest. The 3rd defendant contends that a decree for redemption having been passed against the plaintiffs in O. S. 989 of 1122 M. E., in derogation of their right and title to the one kurni under the court auction purchase the former proceedings were a bar to their claiming possession of the same. Redemption had been ordered and the mortgage amount had been deposited in court. The mortgagors had taken possession of the property under the redemption decree. The trial court overruled the defence and held that there could be no res judicata.
(3) Now the present plaintiffs had been impleaded in that suit only as mortgagees. The title of the court auction purchaser to the 9 kurnies he had taken in the auction was not questioned in the suit and the court auction purchaser, the 21st defendant, was impleaded in the suit only as a person having some subsequent encumbrance. No doubt the suit was one for redemption and possession is a relief which has to be awarded in a redemption suit, but the 21st defendant was not impleaded as a person in possession. He was ex parte and his title under the court auction purchase was paramount and outside the controversy in that suit. The question is, does this preclude the applicability of the bar of res judicata? The claim of the present plaintiffs to 9 kurnies in the suit property is under the 21st defendant apart from their position as mortgagees in respect of one kurni. That purchase was pendent lite and they would be bound only to the extent the court auction purchaser is bound by the decree.
(4) This case has come to this court now for a second time. On an earlier occasion also, the plaintiffs had to come upto this court as appellants. It was then pointed out that the lower appellate court which has rejected the plaintiffs' claim has not canvassed for decision the points that arose for decision in the case. The circumstances in which a paramount claim of a party to the suit would be barred by res judicata was indicated by this court in remanding the appeal for fresh disposal. The following observations of this court on the earlier occasion may be set out--
'The main question which the appellate court had to decide is this case was whether the decision in O. S. 989 of 1122 was conclusive so far as the paramount title under the court auction sale was concerned. For that purpose it is necessary to have a clear picture of the pleading in that suit as well as issues. The judgment of the lower appellate court does not show that the pleadings have been fully considered on their bearing on the question of paramount title'.
Notwithstanding this specific direction of this court. I am constrained to state that the lower appellate court has again disposed of the matter in a most perfunctory manner. There is little discussion on the question of res judicata and it is completely overlooked that the 4th defendant was ex parte then, and that his title was not put in issue, the learned Subordinate Judge only observing that the court in O. S. 989 of 1122 has gone into the matter and decided that the plaintiffs should surrender possession of the entire western 1/3rd and that therefore the present suit is barred by res judicata. The learned Subordinate Judge ignores that there was no contest in the earlier suit between the present plaintiffs and the plaintiffs in that suit (the present defendants 1 and 2) as regards any paramount title. It was pendent lite that the present plaintiffs became entitled to the one kurni that had been sold away in court auction. Their vendor, though he had been impleaded as a party defendant in the former case has not been exhibited and from the statement of the case in the preamble portion to the judgment which was ex parte the present plaintiffs are shown only as mortgagees in possession and the court auction purchaser as a subsequent encumbrancer. To sustain a plea of res judicata it will be incumbent on the contesting defendants to establish that in the earlier suit they sought to question the paramount title of the court auction purchaser. The court auction purchase could not have been impugned in that and does not appear to have been impugned. The present contesting defendant, the third defendant has in the present suit questioned the validity of the court sale, the decree for michakaram having been passed only against the first defendant. This objection has been overruled as wholly without substance, both the courts having found that the kanom property was the first defendant's self-acquisition and had been allotted to him in the partition in his tarwad.
The law is well established that if a defendant in a mortgage suit has title independent of the mortgage and paramount or adverse he is not bound to set it up in the mortgage suit. No doubt in a suit for redemption of a mortgage the adding as a party of a person claiming title to the mortgaged property, it has been held, is not obnoxious to the rules relating to the joinder of parties--see Manakal Narayanan v. Venkitajela Aiyar, 5 MLW 615=AIR 1918 Mad 705. But this is quite different from saying that a person having a paramount claim is a necessary party to a redemption action. The rule of res judicata which is sought to be applied in this case is the rule of constructive res judicata found in Explanation IV to S. 11 C.P.C., which provides that any matter which might and ought to have been made ground of defence in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. The court auction purchaser on the allegations in the former suit has not acquired possession of any portion of the property. It transpires that the entire extent of 12 kurnies was in possession of the plaintiffs under two mortgages, one of them being the subject of the redemption suit. No relief for possession was claimed against him and no declaration was sought impugning his title as court auction purchaser of 9 kurnies. Can it be said in the circumstances that he ought to have put forward his title under the court auction purchase? It was unnecessary for the present 4th defendant then to have put forward any defence on the basis of his title; nor was any attack on the then plaintiff's claim in that suit called for In Ramanna v. Venkatanarayana : AIR1927Mad301 , the learned Judge, Devadoss J., if I may say so with respect, on an analysis of the case law neatly summed up the position in the following six propositions--
'(1) A person claiming adversely to the mortgagor and mortgagee is not a necessary party to a mortgage suit. If he is made a party he can get himself dismissed from the suit.
(2) If the mortgagee makes a person defendant who has not derived title from the mortgagor on the ground that he is in possession of the mortgage property, such person is not a necessary party and need not defend his title to the property.
(3) In a redemption suit by the mortgagor a person in possession of the mortgage property can be made a party as it would be convenient to adjudicate on his title in that suit for redemption which is really one for possession.
(4) Any person interested in the redemption of a mortgage is a necessary party to the mortgage suit.
(5) The court has jurisdiction to adjudicate on the paramount title of a person claiming adversely to the mortgagor and the mortgagee if such person is made a defendant to the suit.
(6) The court is not bound to adjudicate on the title paramount of a third person if it considers it inconvenient or unnecessary to do so; in other words the court has a discretion in the matter'.
The learned Judge concludes that where it is entirely in the discretion of the court to allow the paramount tittle of a third person to be gone into or not, it cannot be said that it is a matter which ought to have been made a ground of defence or attack in the former suit. In Sonahannessa v. Abdul Hamid : AIR1932Cal12 , it is held that where in a mortgage suit the defendant possesses both the paramount title and an interest in the equity of redemption, he should not be allowed to rely on his paramount title and plead it, and that in a subsequent suit he can plead his paramount title and cannot be estopped from pleading it as the question would not be barred by res judicata. It follows in the light of the above discussion that the present plaintiffs claiming from the 4th defendant are not precluded from asserting their title to the entire 3/4th share in the eastern portion of the plaint scheduled property under the court auction purchaser whose rights as a purchaser were outside the controversy in the redemption suit filed by defendants 1 and 2.
(5) But then as it is nobody's contention that the could auction purchase was free of prior encumbrance, the one kurni comprised in the court auction will be subject to the mortgage. When the plaintiffs acquired by their purchase the equity of redemption in this one kurni, they themselves being the mortgagees, there was a merger of both the rights in the plaintiffs. In the redemption suit which was decreed ex parte the court ordered that all the defendants in the suit would be jointly entitled to draw the mortgage amount of Rs.875 deposited for redemption. It is in these circumstances the plaintiffs in this suit have claimed declaration that they alone are entitled to draw the amount in deposit in the redemption suit. They have now impleaded all the persons who were made party defendants in the former suit, besides the plaintiffs in that suit. The third defendant had claimed in that suit that he was also a mortgagee, but as there was no contest then, the question was not adjudicated. Redemption was ordered in favour of all the defendants. It has since been found in the present suit that the third defendant has no right in the othi as mortgagee. He claimed to have purchased a 6/26th share of the othi right from some persons. But he had not established that his vendors were compete to convey the 6/26th share. It is in these circumstances, the trial court has negatived the third defendant's claim to any share in the othi amount in O. S. 989 of 1122 M. E. The appellate court would hold that the present plaintiff's claim to draw the mortgage amount was barred by res judicata by reason of the decree in O.S. 989 of 1122 M.E. The learned Subordinate Judge does not discuss on what principle of res judicata the plaintiff's claim for the amount is barred. The Judge is that he had earlier held that the former suit is res judicata. It is not seriously contended before me so far as this part of the claim is concerned that there can be any res judicata. The parties were all co-defendants in the former suit and it was unnecessary to decide the controversy, if any, between them to give relief to the plaintiffs in the former suit and there has been no adjudication of the controversy between the defendants inter se.
(6) It is contended for the respondents that at any rate the plaintiffs cannot now be permitted to draw the entire mortgage amount. They have failed in their contention that they were placed in possession of only three kurnies under the othi. To this extent it may be said that the former judgment is res judicata. The othi was for 4 kurnies and if by the court auction purchase the present plaintiffs became entitled to one kurni of the property othied, there may be major but they will have to bear the proportionate burden of the othi debt. They are bound to contribute their share of the mortgage debt even as their vendor, the 4th defendant, was bound to, it not having been made out that his purchase was free of the prior encumbrance. He was only a court auction purchaser and had acquired the right, title and interest of his judgment debtor and that was only the equity of redemption. Counsel for both sides agree that this controversy may be resolved in this suit itself and the plaintiffs, right in the mortgage amount in court deposit in O. S. 989 of 1122 M. E. may be limited to 3/4th of the amount. Such an order would only be making the plaintiffs contribute their share of the mortgage debt as they are bound.
(7) In the result the decree and judgment of the lower appellate court are set aside and the decree and judgment of the trial court restored subject to the modification that in respect of the mortgage amount in deposit in O. S. 989 of 1122 M. E. the present plaintiffs can draw out only 3/4th of the amount. The plaintiffs in the former suit who make the deposit may draw out the balance. The second appeal is accordingly allowed. There will be no order as to costs. No leave.