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Raman Menon Vs. Mammali - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in39Ind.Cas.954
AppellantRaman Menon
RespondentMammali
Cases ReferredGanpathi Mudali v. Venkatalakshminarasayya
Excerpt:
.....suit for possession, maintainability of--res judicata--high court--appeal, second fresh evidence, admissibility of--civil pro--vedure code (act v of 1908), section 11, order xlii. - - when he so based his claim on title, he ought to have stated in his plaint when he was dispossessed by the defendants, so that the court might be satisfied that the suit on title is not barred by limitation, that is, that he had not been dispossessed more than twelve years before suit. on that finding it seems to roe that this suit is clearly barred as res judicata. the former decree of 1892 in ejectment was clearly based on the ground that the relationship of landlord and tenant had been put an end to between the parties before the suit was brought. if at the time when this appeal was..........for possession of immoveable property and allows execution to become barred, he cannot bring a fresh suit for ejectment against the same parties or their representatives, unless any events have happened between the date of the decree and the date of the second suit which fresh events have given rise to a fresh cause of action in ejectment. the finding of the lower appellate court is that no such events have happened. on that finding it seems to roe that this suit is clearly barred as res judicata.3. we are next asked to admit fresh evidence in second appeal in order that the finding of appellate court might be attacked on such fresh evidence. in 1872 the bombay high court decided in nmabhai vallabhdas v, nathabhai haribhai 9 b.h.c.r. 89 that it was not competent to the high court.....
Judgment:

Sadasiva Aiyar, J.

1. The plaintiff is the appellant in this second appeal. He brought the suit in ejectment on the basis of an unregistered kaichit, dated October 1894, alleged to have been executed by the deceased Pakru whose representatives are the defendants Nos. 1 to 6, Both the lower Courts found that this unregistered kaichit was not a genuine document The plaintiff based his claim also upon his title. When he so based his claim on title, he ought to have stated in his plaint when he was dispossessed by the defendants, so that the Court might be satisfied that the suit on title is not barred by limitation, that is, that he had not been dispossessed more than twelve years before suit. He did not give any indications in his plaint on these points, evidently because the plaint was substantially based on the alleged kaiehit of 1894. When the case came up on second appeal before this Court, it remanded the suit for a finding by the lower Appellate Court on the issue whether the possession by Pakru or the defendants of the suit property was at any time previous to this suit adverse to the plaintiff and if so, from when it began to be adverse and till whin it continued to be adverse.

2. It is common to both sides that Pakru was originally a tenant under the plaintiff's tarwad. The plaintiff's tarwad put an end to the tenancy and then brought a suit, Original Suit No. 563 of 1892, to eject Pakru. That suit resulted in a decree in ejectment. But that decree was not executed and was allowed to be barred. It seems to me clear that when a plaintiff has obtained a decree for possession of immoveable property and allows execution to become barred, he cannot bring a fresh suit for ejectment against the same parties or their representatives, unless any events have happened between the date of the decree and the date of the second suit which fresh events have given rise to a fresh cause of action in ejectment. The finding of the lower Appellate Court is that no such events have happened. On that finding it seems to roe that this suit is clearly barred as res judicata.

3. We are next asked to admit fresh evidence in second appeal in order that the finding of Appellate Court might be attacked on such fresh evidence. In 1872 the Bombay High Court decided in Nmabhai Vallabhdas v, Nathabhai Haribhai 9 B.H.C.R. 89 that it was not competent to the High Court admit fresh evidence as to facts in second appeal and that decision was followed in Bqmckandra Pandurang Sathe v. Krishnaji Vithal Joshi 5 Bom. L.R. 615, and the same practice has prevailed in this Court, The proper course, where a party thinks that any fresh evidence which is discovered after the decision of the Appellate Court would have been of assistance to him if it had been considered at the original trial or in the appeal, is for him to withdraw the second appeal and apply for review of the judgment in the lower Appellate Court. We must, therefore, dismiss the petition presented to us for allowing fresh evidence to be admitted in second appeal.

4. The above observations are sufficient to dispose of the second appeal; but, as the appellant's learned Vakil placed before us very strenuously some arguments on the, question of the continuance of the relationship of landlords and tenants after the decree in the suit of 1892 and on the question of adverse possession, I shall make a few observations thereon. The former decree of 1892 in ejectment was clearly based on the ground that the relationship of landlord and tenant had been put an end to between the parties before the suit was brought. I think it is absolutely unarguable that a tenancy can be put an end to by the landlord's act, but the decree of the Court, which recognises the Said act of the landlord as having put an end to the tenancy, again revives the relationship of landlord and tenant and that such relationship continues till the landlord does a fresh act putting an end to the tenancy. Then on the question of adverse possession, I have, no doubt, held in Ganpathi Mudali v. Venkatalakshminarasayya (1914) M.W.N. 728 that mere expiry of the term of an agricultural tenanoy should not be held to make the tenant holding over a trespasser and that the ordinary presumption ought to be that he holds over as a tenant from, year to year. But such a presumption is out of place when the facts are, not that the landlord has passively allowed the tenant to hold over and the tenant has quietly continued to hold over, but that there has been an express putting an end to the tenancy by the landlord and a decree of Court recognising the termination of the. tenancy and decreeing ejectment to the landlord. In such a case, there can be no question of the tenant continuing to occupy the land (after the date of the decree) as a tenant from year to year. His possession is wrongful and opposed to his duty to obey the decree of Court by surrendering possession to the decree-holder. Hence, unless there are subsequent express and overt acts on the part of the landlord and tenant afterwards creating the relationship of landlord and tenant afresh, the judgment-debtor's possession is wrongful, I might add that in this case the evidence is to the effect that the contesting defendants refused to execute a fresh kaichit after the original decree in ejectment became barred.

5. Under these circumstances, I have no hesitation in accepting the finding of the lower Appellate Court that the judgment-debtor in the former suit and his representatives, have been in possession adversely to the plaintiff.

6. The second appeal is accordingly dismissed with costs.

Spencer, J.

7. I agree. If at the time when this appeal was remanded for a finding on the issue of adverse possession a good case had been made out for allowing the parties to adduce fresh evidence, I think that this Court would have been competent as a Court of Second Appeal to direct the lower Appellate Court to record additional evidence. But at this stage, when this case has once gone back and a fresh finding on the issue of fact has been recorded, I do not think it would be proper to give the appellant the indulgence he now asks for.


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