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Kattampudi Subbia Chetty and anr. Vs. Kanchi Narayanasami and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in103Ind.Cas.887
AppellantKattampudi Subbia Chetty and anr.
RespondentKanchi Narayanasami and ors.
Excerpt:
.....res judicata--identity of parties--suit against defendant in his private capacity--plea that he is trustee and property in dispute trust--defendant remaining ex parte--decree on assumption that property was private--subsequent suit by defendant as trustee--nature of property, whether res judicata. - securitisation & reconstruction of financial assets & enforcement of security interest act, 2002 [c.a. no. 54/2002]section 17; power of tribunal to impose condition relating to deposit for grant of stay of auction held, there is no specific provision made under section 17 of securitisation act or under any other provisions of the said act empowering the tribunal to pass any interim order. but under sub-section (12) of section 19 of the recovery of debts due to banks and financial..........to the present plaintiff, the basis of that decree being that the whole property concerned was private property. i am unable to agree with the finding of the learned subordinate judge and district munsif on this question, which is issue no. 3 in the present suit. from ex. b. the judgment in o.s. no. 200 of 1905, it appears that the plaintiff was then sued in his personal capacity, not as trustee. it is true that he pleaded in his written statement in that suit that the property concerned was part of the endowment of the chatram, of which he claimed to be the trustee. issue no. 1 in that suit was framed in consequence of that plea and ran:whether the suit immoveable property is the private family property of the plaintiff or is dedicated to the choultry.2. but at the trial of the suit.....
Judgment:

Reilly, J.

1. The plaintiff sues as trustee of a chatram for a declaration that the land concerned belongs to the chatram as part of its endowment for an injunction restraining the defendants from raising any building on the land and directing the removal of any buildings raised already and for recovery of possession of the land from the defendants. The learned Subordinate Judge and District Munsif have found that the question whether the land is the property of the chatram trust is res judicata by reason of the decision on O.S. No. 200 of 1905 on the District Munsif's file, in which Ramanuja Rao, the vendor of the defendant's vendor, sued for and obtained a decree for partition, making the present plaintiff a defendant, by which decree 1/4 of the land concerned in that suit, including the land now in question, was allotted to Ramanuja Rao and another 1/4 was allotted to the present plaintiff, the basis of that decree being that the whole property concerned was private property. I am unable to agree with the finding of the learned Subordinate Judge and District Munsif on this question, which is issue No. 3 in the present suit. From Ex. B. the judgment in O.S. No. 200 of 1905, it appears that the plaintiff was then sued in his personal capacity, not as trustee. It is true that he pleaded in his written statement in that suit that the property concerned was part of the endowment of the chatram, of which he claimed to be the trustee. Issue No. 1 in that suit was framed in consequence of that plea and ran:

Whether the suit immoveable property is the private family property of the plaintiff or is dedicated to the choultry.

2. But at the trial of the suit the present plaintiff did not appear and the District Munsif did not think it necessary to record a finding on that issue. He made a decree for partition on the basis that all the property concerned was private property. It will be seen that originally the present plaintiff was not brought into that suit in the same capacity in which he now sues: though in his written statement he professed to have the capacity of trustee and contended that the property was trust property, he did not contest the suit to the end, and no finding on his contention regarding the property was recorded: after he ceased to contest the suit it proceeded, as it had begun, on the basis that the property concerned was private property. The present plaintiff raised the question whether the property was trust property but that question was never decided. Instead of that question being finally decided it was assumed for the decision of that case that the property was private property. The learned Subordinate Judge is of opinion that the partition decree which was made implied a finding that the property was private property. But that is not so. There was no one on the record of that suit to represent the trust The District Munsif who tried the suit pointedly and advisedly refrained from any finding whether the property was trust property and made a decree binding only on the parties to that suit on the assumption that the property was divisible private property. What the result of that decree would have been if the present plaintiff had been on the record as trustee of the chatram we need not consider as he was not on the record in that capacity. The finding on the second issue in that suit to the effect that the property had been treated as divisible and had been divided in 1892 does not carry the matter farther.

3. The present suit cannot therefore be dismissed, as it has been dismissed in the lower Courts, on the ground that the plaintiff 's claim that the land concerned belongs to the chatram trust is res judicata. Issues Nos. 1 and 2 or at least Issue No. 1 must be decided. In consequence of his view on the question of res judicata the Subordinate Judge has dealt very briefly with these issues. They are (1) whether the plaintiff is the trustee of the temple and choultry as alleged by him (the temple I am informed was a small shrine in the chatram premises) and (2) whether the suit site belongs to the temple and choultry. Under Ex. A series the plaintiff purported to buy in 1900-03 certain parts of the chatram and its land from members of Ramanuja Rao's family, among whom they appear to have been divided, with the right and duty to maintain the chatram. It is not now suggested for the plaintiff that he could acquire the trusteeship by purchase in that way. But it is contended that, he has prescribed for the trusteeship and so has become trustee. Exhibit A series show that not only had some of the chatram property been sold by Ramanuja Rao's family previously to other persons but that the plaintiff did not by his purchase obtain all that mained of the chatram property. The District Munsif states that the chatram and temple are in ruins, and there appears to be no evidence that the plaintiff has maintained the ch'ttram at any time though there is no issue about this Exhibit E. shows that an in am granted by the Government in connection with the chatram was resumed in 1902. The District Munsif has found that the plaintiff is not trustee and that the property concerned is private property and never belonged to the temple and chatram. The Subordinate Judge appears to agree with the District Munsif Section finding on Issue No. 1 : and on Is9ue No. 2 he contends himself with saying that the facts indicate that the property has always been treated as private property. In the circumstances I do not think it necessary to call for more explicit findings from the Subordinate Judge on issues Nos. 1 and 2. It is clear that the plaintiff has not established his right to sue as trustee.

4. This appeal is dismissed with costs.


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