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Chevraya Goundan and ors. Vs. Athappa Goundan and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in75Ind.Cas.336
AppellantChevraya Goundan and ors.
RespondentAthappa Goundan and ors.
Cases ReferredMadhavan v. Keshavan
Excerpt:
civil procedure code (act v of 1908), section 11, expl. v 1, order 1, rule 8 - representative suit--leave to sue on behalf of others not obtained--compromise decree--res judicata. - .....the first point taken for the appellants is that if the prior suit was to recover as a right held in common with others, it was incompetent as it was not brought under order 1, rule 8. explanation 6 to section 11 of the code of civil procedure says that where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the person so litigating. in srooman madabushi gopalacharlu v. emmant subbamma 55 ind. cas. 984 : 43 m. 487 : 38 m.l.j. 493 : (1920) m.w.n. 435 : 37 m.l.t. 219 it was held that this explanation is not confined only to cases where leave of the court has been granted under order 1, rule 8. in that.....
Judgment:

Odgers, J.

1. This suit was brought by the four plaintiffs for the recovery of certain lands alleged to belong to the Mariamman Temple of Chettipatti under Order 1, Rule 8 of the Code of Civil Procedure and for a declaration that the decree in Original Suit No. 934 of 1911, is not binding on the plaintiffs. The District Munsif found that the plaint property belonged to the temple, that the temple had possession of the plaint property within twelve years of the suit, and that there was no res judicata by reason of Original Suit No. 134 of 1911; and gave the plaintiffs a decree.

2. On appeal the Sub-Judge found that there Was res judicata and that a certain compromise (to be referred to later) was not fraudulent or ultra vires and reversed the Munsif's decree. The question in second appeal is whether the Sub-Judge is right on both these points.

3. In the previous suit, which was brought by the present defendants Nos. 1 to 3 and two others, they sued as the Periadhanakars of the Chettipatti village to recover the same land as is in suit in the present case. The former suit was compromised by two of the plaintiffs and the suit was dismissed as against two others.

4. The former suit was not brought under Order 1, Rule 8, but the plaintiffs there (Nos. 1 to 4) were Periadhanakars of the Padayachies of the Chettipati village. In their plaint paragraph 4 (p. 14 of the papers in Second Appeal No. 786 of 1914) they stated 'the suit inam land has been in possession of the Periadhanakars, plaintiffs Nos. 1 to 4, since the time of their forefathers. Since the time of the plaintiffs' forefathers the Puja festival, etc., affairs of the Mariamman temple in the saia Chettipatti village have, for many a year, been conducted with the funds made up of the income derived from the suit inam land and of the collection of tax, Vattam, etc., from among the Padayachi ryots alone, who are of the same caste as the plaintiffs.' The plaintiffs therein contended that the suit land belonged to the Mariamman temple at Chettipatti, while the defendants therein contended it belonged to a similar temple at Uppupalayam--another hamlet in the same village. In my opinion, it must be taken that the plaintiffs in the former suit were suing as trustees on behalf of themselves and the whole body of persons worshipping or interested in the temple at Chettipatti.

5. The first point taken for the appellants is that if the prior suit was to recover as a right held in common with others, it was incompetent as it was not brought under Order 1, Rule 8. Explanation 6 to Section 11 of the Code of Civil procedure says that where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the person so litigating. In Srooman Madabushi Gopalacharlu v. Emmant Subbamma 55 Ind. Cas. 984 : 43 M. 487 : 38 M.L.J. 493 : (1920) M.W.N. 435 : 37 M.L.T. 219 it was held that this explanation is not confined only to cases where leave of the Court has been granted under Order 1, Rule 8. In that case a suit by some of the Agraharamdars of a village against the zemindar and the other Agraharamdars was held res judicata against the representative of one of the latter who was a defendant, but who died pending the appeal and whose legal representative had not been brought on the record. Walks, C.J. held in that case that though 'he would hesitate to hold that any litigation had been bona fide within the meaning of the explanation in which there had been a substantial departure from the accepted rules as, to the joinder of parties, as, for instance, by suing without the leave of the Court in a case properly falling under Order 1,Rule 8...,' there was a cas for res judicata established.

6. The decison follows that in Godimella Rangamma v. Panchangam Narasimha charyulu : (1916)31MLJ26 , where the contention for the appellants was that Explanation 6 of Section 11 makes the decision in the first suit res judicata only if the first suit was a representative one under Order 1, Rule 8. It was held that the Explanation does not become inapplicable because the suit was for the establishment of the plaintiff's individual right in addition to the right claimed by him in common to himself and others in so far as his claim in respect of the latter right was concerned. It appears to me that the prior suit though not brought under Order 1, Rule 8 was brought in respect of a right claimed by the plaintiffs as trustees of the temple in common with themselves and others. If this is correct it would, on the authority of the two cases quoted, above, appear to make no difference whether it was in fact brought under Order 1, Rule. 8 and that the observation of Wallis, C.J., referred to above would be inapplicable to a case where, as here, the trustees represented the whole body of the worshippers of this particular temple in the suit. It was further argued that a decree by way of Compromise can never constitute a res judicata by reason of the fact that the mind of the court had not been brought to bear upon it, and reliance was placed on Jenkins v. Robertson 1 H.L. Sc. 17. This case is, however, explained by Vaughan Williams, J., in In re South American and Mexican Company, Ex parte Book of England (1895) 1 Ch. 37 : 64 L.J. Ch. 189 : 12 R. 1 : 71 L.T. 594 : 43 W.R. 131, where he holds that Jenkins x. Robertson 1 H.L. Sc. 17 is no decision on the general law. 'All that the House of Lords decided was that such a result (i.e., binding the public at large under the Scots Law) would not bind the public at large unless it was a result arrived at after judicial consideration, and that it would not bind the public if it was a result arrived at by consent, and a fortiori if such a consent was a purchased consent.' Again, 'It has always been the law that a judgment by consent or by default raises an estoppel just in the same way as a judgment after the Court has exercised a judicial discretion in the matter.' This decision was approved by the Court of Appeal, where Lord Herschell, L.C, said: 'the truth is a judgment by consent is intended to put a stop to litigation between the parties just as much as is a judgment which results from the decision of the Court after the matter has been fought out to the end.'

7. In Kumara Venkata Perumal v. Thatha Ramaswamy Chetty Ind. Cas. 875 5 M. 35 : (1911) 1 M.W.N. 290 : M.L.T. 48 : 21 M.L.J. 706 it was held that the test for res judicata arising from a compromise is to be found in the construction of the decree in each case and that, whatever is necessarily involved in the decree cannot be re-opened by either party. Madhavan v. Keshavan 11 M. 191 : 4 Ind. Dec. (N.S.) 133 was a suit by one trustee out of five to recover property alleged to have been illegally alienated by three of the others to a stranger. This suit was dismissed and was held to be a bar to a suit by the fifth trustee as he must be held to have claimed under the plaintiff in the former suit.

8. I am, therefore, of opinion, on the authority of the above cases that the compormise decree as to two of the defendants in the former suit and the dismissal of the suit as against two of the others (fifth was only a tenant) constitute a res judicata under Section 11 Explanation 6, and I, therefore, agree with the Sub-Judge that the present suit cannot be maintained unless the compromise can be attacked in some effective manner. The only point urged before us on this part of the case is that the Compromise was effected by only two of the trustees and it is said that there was no evidence of authority to bind the others. The latter, however, allowed the suit to be dismissed against them and in fact did not appear when judgment was pronounced. The Sub-Judge sent the case down to the District Munsif, for a finding as to the bona fides of this compromise, whether defendants Nos. 1 to 3 in the former suit acted within the ambit of their powers as trustees of the temple or whether they acted fraudulently with the other defendants. The Munsif found that the trustees acted bona fide in the interests of the institution and within the ambit of their powers and that there was no fraud or collusion with the other defendants. This appears to me to be a question of fact on which both the Munsif and the Sub-Judge (see paragraph 9 of the latter's judgment) are agreed. I see no reason to interfere with these findings. In my opinion, the second appeal, therefore, fails on both the grounds urged by the appellants and must be dismissed with costs.

Ayling, J.

9. I agree.


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