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Pandurangan Vs. Sakkubai, - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai High Court
Decided On
Case NumberS.A. No. 949 of 1993
Judge
Reported in(2004)4MLJ497
ActsCode of Civil Procedure (CPC) - Sections 100
AppellantPandurangan
RespondentSakkubai, ;kokilambal, ;kannan, ;mahalakshmi, ;subbarayan, ;palani and Sekar
Appellant AdvocateHema Sampath, Adv.
Respondent AdvocateN. Manokaran, Adv. for ; S. Kunalan, Adv. for RR-1 and 2
DispositionAppeal dismissed
Cases Referred(Mohd. Mohammad Ali vs. Jagadish Kalita
Excerpt:
.....and injunction - in earlier suit it was decided that defendants entitled to 2/3rd share in suit property - plaintiff cannot claim title to suit property in fresh suit on ground of adverse possession as it is hit by doctrine of res-judicata - no other material found to show that plaintiff in possession of suit property as adverse possession against interest of true owner - appeal dismissed. - constitution of india article 141; [a.p. shah, c.j., f.m. ibrahim kaliffulla &v. ramasubramanian, jj] reference to larger bench - precedent - full bench decision held, it is binding on the division bench. only if the full bench comes to conclusion that earlier full bench decision is incorrect, there is scope for making reference to larger bench. division bench doubting correctness of..........court. hence, this second appeal by the plaintiff.3. the case of the plaintiff is as follows:the suit property was originally settled in favour of the mother of the plaintiff. after her death, the plaintiff has been in possession and enjoyment of the suit property. when the defendants disturbed the possession, the plaintiff earlier filed the suit in o.s.no1434 of 1974 for declaration and injunction. ultimately, that suit was dismissed, holding that the plaintiff would be entitled to 1/3 share and the defendants therein would be entitled to 2/3 share. even after the dismissal of the earlier suit, the plaintiff has been in possession and enjoyment of the suit property, openly to the knowledge of the defendants. no steps have been taken by the defendants to recover the property. hence,.....
Judgment:

M. Karpagavinayagam, J.

1. The plaintiff in the suit is the appellant herein.

2. The plaintiff filed the suit against the defendants for declaration and injunction. The suit was decreed by the trial Court. However, in the appeal filed by the defendants before the first appellate Court, the appeal was allowed, setting aside the judgment and decree of the trial Court. Hence, this second appeal by the plaintiff.

3. The case of the plaintiff is as follows:

The suit property was originally settled in favour of the mother of the plaintiff. After her death, the plaintiff has been in possession and enjoyment of the suit property. When the defendants disturbed the possession, the plaintiff earlier filed the suit in O.S.No1434 of 1974 for declaration and injunction. Ultimately, that suit was dismissed, holding that the plaintiff would be entitled to 1/3 share and the defendants therein would be entitled to 2/3 share. Even after the dismissal of the earlier suit, the plaintiff has been in possession and enjoyment of the suit property, openly to the knowledge of the defendants. No steps have been taken by the defendants to recover the property. Hence, the plaintiff filed the present suit for declaration and injunction on the ground that any right which accrued to the defendants stood extinguished by efflux of time and as such, the plaintiff prescribed his title by adverse possession.

4. The case of the defendants is as follows:

The plaintiff cannot claim title to the suit property. In the earlier suit in O.S.No.1434 of 1974, similar relief was sought for against the defendants and the same was dismissed and as such, the finding given in the earlier suit that the defendants 1 and 2 would be entitled to 2/3 share, has become final, as the said decree in the earlier suit has not been appealed against. As such, the present suit is hit by the doctrine of 'res-judicata'.

5. During the course of trial, the plaintiff examined himself as P.W.1 besides three others as P.Ws.2,3 and 4 and marked Exs.A-1 to A-38 and the second defendant examined herself as D.W.1 and third defendant examined himself as DW2, besides one another person as DW3 and marked Exs.B1 to B3.

6. The trial Court, on analysing the evidence available on record, rejected the case of the defendants and decreed the suit in favour of the plaintiff. As indicated above, the first appellate Court, while allowing the appeal, held that the suit is barred by the doctrine of 'res-judicata' and consequently, the plaintiff would not be entitled to the relief sought for. Challenging the same, the second appeal has been filed by the plaintiff.

7. At the time of admission of the second appeal, by the order dated 26.8.1993, the following substantial question of law has been formulated by this Court for consideration:

'Whether the lower appellate Court was right in holding that the decision in O.S.No.1434 of 1974 operates as 'res-judicata' without appreciating the fact that the plea of adverse possession was not taken by the appellant but by the 3rd defendant in that suit?'

8. In elaboration of the above substantial question of law, learned counsel for the appellant/plaintiff would contend that even after the disposal of the earlier suit in O.S.No.1434 of 1974, the defendants did not take steps to take possession of their share in the suit property and the appellant/plaintiff's possession of the entire suit property became adverse and as such, the lower appellate Court ought to have confirmed the trial Court's judgment and decree for declaration and injunction, which was a well-considered one.

9. It is further contended by learned counsel for the appellant/plaintiff that the issues involved in the earlier suit in O.S.No.1434 of 1974 and the present suit in O.S.No.513 of 1988, are different and the causes of action also differ and therefore, the principle of 'res-judicata' will not get attracted.

10. In justification of the judgment and decree rendered by the lower appellate Court, learned counsel for the respondents 1 and 2 has argued at length. He has cited several authorities in support of his submissions.

11. I have heard the learned counsel for the parties and considered their respective submissions and also perused the records.

12. According to the appellant/plaintiff, subsequent to the disposal of the suit in O.S.No.1434 of 1974 on 30.9.1977, the defendants were keeping quiet, allowing the appellant/plaintiff to enjoy the property and during that period, the patta and other revenue records were issued in favour of the plaintiff and as such, the plaintiff would be entitled to declaration and injunction in the present suit on the ground of adverse possession.

13. It is the case of the defendants 1 and 2, the respondents 1 and 2 herein that the finding in the earlier suit in O.S.No.1434 of 1974 filed by the very same plaintiff, seeking the very same relief as against the very same defendants, is that the respondents 1 and 2 are the owners of 2/3 share in the suit property and the remaining 1/3 share belonging to the plaintiff has been sold to the third defendant in the present suit, under a sale deed and subsequently, the plaintiff became the lessee of the third defendant.

14. Though the plaintiff would refer to the earlier suit, there is no mentioning about the finding of the fact that the plaintiff was only a lessee to the third defendant in the present suit in O.S.No.513 of 1988, filed against the very same defendants.

15. The claim of the plaintiff in the present suit is that he became the owner of the property subsequent to the dismissal of the earlier suit, since he was in uninterrupted possession to the knowledge of the respondents/defendants.

16. Admittedly, the finding given by the Civil Court in the earlier suit in O.S.No.1434 of 1974 that the plaintiff was only entitled to 1/3 share and the same was also sold by him to the third defendant in the present suit, who in turn allowed the plaintiff to have the possession as a lessee, has become final, as there is no appeal challenging the same.

17. It is surprising to say that instead of approaching the appellate Court challenging the said finding of the Civi Court in the earlier suit, the plaintiff has chosen to file the fresh suit in O.S.No.513 of 1988 after eleven years, pleading adverse possession. The lower appellate Court, on the basis of the finding given in the earlier suit, would hold that the relief of adverse possession cannot be claimed by the plaintiff, who has been a lessee under the third defendant in the present suit.

18. As correctly pointed out by the lower appellate Court, the present suit was filed in the year 1988. As such, no materials have been placed by the plaintiff to establish the adverse, hostile, continuous and uninterrupted possession against the interest of his owner, over and above the period of twelve years. Even assuming that the plaintiff was enjoying the entire suit property, it must be taken that he was in possession and enjoyment as one of the co-sharers.

19. When there was a finding in the earlier suit that the plaintiff was a co-sharer, the fresh suit claiming title over the property on the ground of adverse possession, is hit by the doctrine of 'res-judicata'.

20. The doctrine of 'res-judicata' conceived in the large public interest requires that all the litigations must, sooner than later, come to an end. The principle is also founded on the equity, justice and good conscience, which requires that a party who has once succeeded on an issue, should not be permitted to be harassed by multiplicity of proceedings involving determination of the same issue.

21. It is contended that the title is claimed in the present suit only on the basis of adverse possession.

22. It is well established that a person who claims title to the property by adverse possession, must definitely allege and prove how and when adverse possession commenced and what was the nature of his possession. The adverse possession must be adequate in continuity, in publicity and extent and a plea is required at least to show that when possession becomes adverse, so that the starting point of limitation against the party affected can be found.

23. The concept of adverse possession contemplates a hostile possession, i.e. a possession which is expressly or impliedly in denial of the title of the true owner. For deciding whether the alleged act of a person contributed adverse possession, the animus of the person doing that act is the most crucial factor.

24. A mere suggestion in the relief clause that there was an uninterrupted possession for a period more than 12 years or that the plaintiff had acquired possession and title, is not enough to raise such a plea.

25. The above mentioned principles have been laid down in the decisions given below:

(a) 1995 (1) L.W. 680 (Madras High Court)

(Ponnaiyan v. Munian (died) and Ors.);

(b) 1996 (2) L.W. 344 (Madras High Court)

(Natesan v. Chinnachi Kandar and Ors.);

(c) 1998 (I) C.T.C. 241 (SC)

(Thakur Kishan Singh (dead) v. Arvind Kumar);

(d) 2001 (3) C.T.C. 142 (Madras High Court)

(Pazhamaruthai @ Marudamathu v. M.Subramaniam);

(e) 2002 (4) C.T.C. 535 (Madras High Court)

(Venkatapathy Naidu.R. @ Thambu v. Devaraja Aiyar);

(f) : AIR2003SC3907 (Deva v. Sajjan Kumar);

(g) : 2003(3)CTC671 (Madras High Court)

(Menon, K.D. v. Panchitra).

26. In the light of the above principles laid down in the said decisions, if we apply the same to the present facts of the case, it would be obvious that there is no material to show that the plaintiff was in possession of the suit property as adverse, hostile, continuous and uninterrupted possession against the interest of the true owner over and above the period of 12 years.

27. As stated above, the earlier suit in O.S.No.1434 of 1974 was dismissed on 30.9.1977. The present suit has been filed in the year 1988 in O.S.No.513 of 1988, i.e. within 12 years of the date of the dismissal of the earlier suit.

28. During the course of arguments, learned counsel for the appellant would submit that the main plea of the appellant/plaintiff in the plaint is that he claimed title only on the basis of 'ouster' and not merely by adverse possession.

29. Even assuming that there is a plea of ouster, it is settled that it is for the plaintiff to prove 'animus possidendi', which has not been done in this case.

30. Ouster does not mean actual driving out of the co-sharer from the property. It will not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of a co-owner. They are: (i) declaration of hostile animus; (ii) long and uninterrupted possession of the person pleading ouster and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. In other words, it is well settled that if a co-sharer is in possession of the entire property, his possession cannot be deemed to be adverse for other co-sharers, unless there has been an ouster of other co-sharers.

31. The correct legal position as laid down by the Supreme Court is that the possession of a property belonging to several co-sharers by one sharer, shall be deemed that he possesses the property on behalf of the other co-sharers, unless there has been a clear ouster by denying the title of other co-sharers and mere mutation in the revenue records in the name of one co-sharer, would not amount to ouster, unless there is a clear declaration that the title of the other co-sharer was denied.

32. These observations were made by the Supreme Court in the decision reported in : (2004)1SCC271 (Mohd. Mohammad Ali vs. Jagadish Kalita), which would clearly apply in all fours to the facts of the present case.

33. In this case, the plaintiff neither proved adverse possession nor ouster, by establishing necessary requirements for the same. Therefore, the second appeal has to be dismissed both in law and on facts.

34. For the reasons stated above, the second appeal is dismissed. No costs.


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