The legal heirs of the second defendant, namely, defendants 3 to 9 in the suit in O.S.No.81 of 1986 on the file of the Subordinate Court, Karur, are the appellants before this Court.
2.The suit in O.S.No.81 of 1986 was filed by the first respondent in this appeal for declaration that he is in exclusive possession of ?B? schedule property and consequently for permanent injunction restraining the defendants 2 to 5 in the suit, from in any manner interfering with the 'B' schedule property. The first respondent alternatively prayed for partition of the suit 'A' schedule property and allotment of 14 Acres 22 cents in 'A' schedule property.
3.The case of the first respondent/plaintiff as set out in the plaint is as follows:-
The suit property described in 'A' schedule originally belonged to one Endammal and Akkammal. By a sale deed, dated 22.10.1954, the first defendant and his brothers purchased an extent of 29.61 Acres, out of 61-1/2 Acres in suit 'A' schedule from the original owner, namely, Endammal and Akkammal. On the same day, the second defendant also purchased the remaining extent of 30 acres and 61 cents in 'A' schedule from the owners.
On 28.11.1959, the first defendant and his brothers Gurusami Naicker, Perumal and Muthiah have partitioned their family properties by a registered partition deed, under which the first defendant was allotted the entire extent of 29 acres 61 cents purchased by him and his brothers on 22.10.1954. The first defendant has been in enjoyment of an extent of 15 acres and 20 cents in S.No.458 and another extent of 14 acres 22 cents in S.No.451. The Assistant Settlement Officer, Tiruchirappalli also granted Ryotwari patta to the first defendant in the year 1960. The plaintiff also filed a suit against the first defendant and his father in O.S.No.2018 of 1973 in respect of 'B' schedule property and another property in S.F.No.413 (which is not the subject matter of the present suit). Pursuant to the preliminary decree that was passed in the suit, the plaintiff got allotment of the suit 'B' schedule in his favour. In the final decree proceedings, he executed the decree and took possession of 'B' schedule property through court on 12.03.1975. However, the second defendant started to remove the mud from the portion of 'B' schedule property by digging huge pits. Hence, the plaintiff was constrained to file another suit in O.S.No.251 of 1977 before the Sub-Court for recovery of damages. Though the said suit was dismissed, the plaintiff preferred an appeal before the Sub-Court in A.S.No.3 of 1994 and the appeal is pending.
The case of the defendants in O.S.No.25 of 1977 are false, as the defendants 2 to 5 were never in enjoyment of the suit 'B' schedule property at any point of time. Since the proceedings of the Settlement Tahsildar has become final, the defendants 2 to 5 cannot question the same, especially when the patta was granted to the first defendant by the Settlement Authority, after issuing notice and holding an enquiry.
After the decision of the suit in O.S.No.251 of 1977, a cloud has been cast on the title of the plaintiff to the 'B' schedule property and hence, it has become necessary for the plaintiff to file the present suit for declaration of his title to the 'B' schedule property and for consequential relief of injunction. However, if for any reason, the court comes to the conclusion that the plaintiff is not entitled to 'B' schedule property, then the plaintiff is alternatively entitled to partition and separate possession of 14 acres 22 cents in 'A' schedule property.
3.The suit was contested by the second defendant and after his death, by his legal representatives namely, defendants 3 to 6. The defendants 3 to 9 claimed right only on the basis of the sale deed Ex.B2 dated 22.10.1954.
4.According to the defendants, the second defendant purchased the property under Ex.B2 and the property purchased by the second defendant is an undivided extent of 30.61 acres, out of the total extent of 61.22 acres in all the 5 survey numbers namely, S.Nos.451, 455, 456, 457 and 458 of Peria Manjuvali village, Karur Taluk. The defendants also claimed exclusive right of title to an extent of 40 cents in S.No.451 of the same village, on the basis of the sale deed under Ex.B2.
5.It is the specific case of the defendants that there is no partition between the first defendant and second defendant and that the entire property measuring to an extent of 60.21 acres covered under two sale deeds obtained by the defendants 1 and 2 are being enjoyed in common and that there is no division between the two purchasers. Further, it was contended that the plaintiff being the son of second wife of second defendant is not entitled to any right over joint family properties of the first defendant.
6.It was also contended by the defendants 3 to 9 that the suit in O.S.No.2018 of 1973 on the file of District Munsif Court, Karur is a collusive one and that the decree passed in the collusive suit is neither valid, nor binding on the defendants.
7.The defendants also contended that the suit in O.S.No.451 of 1977 though was filed for recovery of damages, the issue whether the plaintiff was in exclusive possession of the property in S.No.451 or not was specifically considered and that it has been decided against the plaintiff in the earlier suit. The appeal filed by the plaintiff in A.S.No.3 of 1984 was also dismissed. Though, in the written statement filed by the fourth respondent, a partition among the brothers was pleaded, the suit was contested by specifically denying the case of plaintiff that the defendants 2 to 5 did not enjoy the 'B' schedule property at any point of time. Though the plaintiff relied upon the proceedings of the Settlement Officer for granting ryotwari patta, the defendants would claim that the case of the plaintiff is unsustainable in view of the decision rendered in O.S.No.251 of 1977. There is also a reference to another suit in the written statement, which was filed by the first defendant in O.S.No.453 of 1970.
8.The trial Court, after framing necessary issues, decreed the suit by granting a declaration in favour of the plaintiff in respect of suit 'B' schedule property. The trial Court specifically framed two issues viz., (1)whether the decree in O.S.No.251 of 1977 will operate as res-judicata in the present suit; and (2)whether the present suit is barred under Order 2 Rule 2. The two issues were decided in favour of the plaintiff. Relying upon the various documents filed by the plaintiff in this case, the trial Court also found that the earlier partition has been established by the plaintiff and that patta obtained by the plaintiff from the Settlement Authority was also confirmed by the revenue patta granted in favour of the plaintiff under Ex.A.3. Based on the revenue records, the trial court came to the conclusion that the plaintiff has proved his exclusive possession over the suit ?B? schedule property. Aggrieved by the finding of the trial court, the defendants 3 to 9 have preferred the above appeal.
9.The learned counsel for the appellants focused his argument mainly on the legal implication of the judgment in the previous suit in O.S.No.251 of 1977 on the file of the District Munsif Court, Karur, which is marked as Ex.B.1. He further submitted that the decree in O.S.No.2018 of 1973 on the file of the District Munsif Court, Karur, is a collusive suit and that the same is not binding on the applicants. It is also contended by the learned counsel for the appellants that the plaintiff has not proved their plea of prior partition and their exclusive possession over the suit 'B' schedule. Hence, the following points are framed for determination.
a) Whether the judgment and decree in the previous suit will operate as res-judicata to prevent the plaintiff from contending that the plaintiff is entitled to a decree for declaration of title in respect of 'B' schedule property.
b) Whether the judgement and decree in O.S.No.2018 of 1973 and the alleged allotment of property in favour of plaintiff is binding on the appellants.
c) Whether the plaintiff has proved his exclusive possession and title in respect of suit 'B' schedule.
The amended plaint in the suit is marked as Ex.B.7. The suit in O.S.No.251 of 1977 was filed for recovery of a sum of Rs.1,000/- together with interest towards damages.
10.In the suit in O.S.No.251 of 1977, it was contended by the first defendant in the present suit along with the plaintiff, who are the plaintiffs in that suit, that an extent of 14.22 Acres in S.F.No.451 belonged to the first plaintiff therein who is the first defendant in the present suit. In the said suit, it was specifically contended by the plaintiffs therein that the second plaintiff therein namely, the plaintiff in the present suit, was allotted the suit property in the partition suit in O.S.No.2018 of 1973 and that the plaintiffs therein are entitled to claim damages from the second defendant in the present suit for removing the earth from a portion of land in S.No.451.
11.From the reading of the judgment in O.S.No.251 of 1997, it can be seen that a specific finding is rendered in the previous suit to the effect that the plaintiffs therein have not proved that the property in S.No.451 was exclusively allotted and that the plaintiffs therein are not entitled to claim exclusive right over the property in S.No.451 based on the judgment and decree in the suit in O.S.No.2018 of 1973.
12.The Court has also found that the plaintiffs therein are not entitled to the property in S.No.451 exclusively and that the defendants therein established their right of enjoyment over the entire extent of 14.22 acres in S.No.451. The court has also held that the defendants therein are also entitled to the northern side of the property in S.No.451. Since the plaintiffs therein failed to prove their exclusive right over the property in S.No.451, the suit for damages was dismissed after holding the issues regarding the title and enjoyment as against the plaintiffs therein. Though the issues framed therein, namely in the suit O.S.No.251 of 1977 is only relating to the entitlement of the plaintiffs therein, for damages the factual findings are very much relevant to decide the right of plaintiffs therein to claim damages.
13.The present plaintiff has specifically pleaded in the prior suit that he is the exclusive owner of the property in S.No.451 on the basis of the preliminary decree and final decree passed in his favour in the suit in O.S.No.2018 of 1973. Since the second defendant and the defendants 3 to 9 are not parties to the suit in O.S.No.2018 of 1973, the title and exclusive right of the plaintiffs in the earlier suit in O.S.No.251 of 1977 was held against them. In the earlier suit, the defendants' right to claim ownership over the undivided extent of 30.61 acres, in all the five survey numbers, particularly to an extent of 14.22 acres, in S.No.451, was specifically upheld. Though the respondents claimed that an appeal was filed, in the written statement, it was pleaded by the defendants that the appeal was also dismissed confirming the finding of the trial court in O.S.No.251 of 1975. In such circumstances, the findings in O.S.No.251 of 1975 on the file of the District Munsif Court, Karur, dated 12.06.1982 will operate as res-judicata.
14.It was contended by the learned counsel appearing for the 1st respondent that no issue was framed in the earlier suit about the title of the plaintiffs therein and therefore, the issue decided in the earlier suit regarding the recovery of damages will not operate as res-judicata.
15.Having regard to the pleadings in the previous suit that the claim for damages was only on the basis of the plaintiffs' title and exclusive enjoyment over the plaint 'B' schedule property and if the plaintiff had proved his title and exclusive possession over the property in S.No.451, the Court would have granted decree for damages. Since the specific issue that arose for consideration, though was not properly framed, the finding by the Court was only on the question of title and exclusive enjoyment of the plaintiffs therein. In such circumstances, the finding of the trial Court in O.S.No.251 of 1977 will operate as res judicate and stand in the way of the plaintiff in the present suit to claim exclusive right over the plaint 'B' schedule property on the basis of the preliminary decree and final decree passed in O.S.No.2018 of 1977 on the file of the District Munsif Court, Karur. Since the second defendant or the appellants are not parties in O.S.No.2018 of 1977, the Judgment and decree or any further proceedings are not binding on the appellants.
16.The learned counsel appearing for the appellants vehemently argued that the plaintiff has proved his title as the Settlement Authority has granted ryothwari patta in favour the plaintiff.
17.The learned counsel for the 1st respondent relied upon Ex.A2. Though the learned counsel relied upon Ex.A2 as a patta granted by the Settlement Authority in his favour, this document Ex.A2 is only a Register maintained by the Revenue Deparment. The Settlement Register Ex.A2 only shows the revenue accounts prior to the settlement and after settlement. Further, it is well settled that the proceedings of the Settlement Officer, for the purpose of assessment of revenue, is not binding on the civil court and the civil court is having jurisdiction to decide every issue relating to the question of title. The settlement register, of course, gives an indication that the first defendant's name was included in the settlement register. In the present case, it is not in dispute that the first defendant and the second defendant independently purchased the undivided extents. The first defendant purchased an undivided extent of 29.6 acres and the second defendant purchased an undivided extent of 30.61 acres, out of the total extent of 61.22 acres in different survey numbers, including S.No.451. The document Ex.A2 also indicates that after making entries for the purpose of further enquiry, notice has been issued to all the parties concerned so as to hold an enquiry on 16.11.1960. Hence, the settlement record Ex.A2 is also not final and it is only for the purpose of inviting persons interested to know about the proposal of the Settlement Officer before granting patta. This document Ex.A2 cannot be, therefore, taken as a ryothwari patta granted in favour of the first defendant as an out come of proceedings, which has become final.
18.Even for argument sake that there is a the settlement patta (ryotwari patta) in favour of plaintiff, the settlement patta is not binding on the civil court and the issue of title can be raised before the civil court. As pointed out earlier, out of the total extent of 61.22 acres, the Settlement Authority might have given settlement patta in favour of the plaintiff in the present suit recognizing the partition, pleaded by the plaintiff on the basis of the preliminary decree and final decree passed in the collusive suit, which was between the plaintiff and the first defendant. However, no order is produced to show that appellants or the second defendant were made parties to any such order. Hence, there is no difficulty for this Court to ignore right based on settlement. The plaintiff has neither proved partition nor exclusive possession. The findings of the trial court based on the judgment in O.S.No.2018 of 1977 is nothing but perverse.
19.The document Ex.A1, relied upon by the plaintiff cannot be given much credence. It is pertinent to mention that the document Ex.A1 is stated to be a document when by the first defendant was allotted the undivided extent purchased by him on 22.10.1954. However, the trial court has erroneously held that the first defendant was allotted the specific extent in S.No.451 and 458. In the present case, the fact that the issue has already been decided in the earlier suit, cannot be ignored. In view of the conclusion of this court that the previous suit in O.S.No.251 of 1977 will operate as res-judicata, the plaintiff cannot succeed in the present suit. Hence, the appeal is liable to be allowed.
20.One another argument was also advanced by the learned counsel for the respondents 6 to 7, disputing the plaintiffs' right in respect of an extent of 40 cents, which was exclusively conveyed under the document Ex.B2. The learned counsel relied upon Ex.B2 and interpreted the document Ex.B2, in such a way that the reference to 40 cents in survey number in the said document does not indicate actual conveyance of land, but only the right to collect the mud from the portion of land in S.No.451.
21.A reading of the document gives clear indication that what was transferred under the document Ex.B2 is the exclusive right and title in respect of 40 cents of land on the northern side of S.No.451 out of the total extent of land that belonged to the owners of the property. The total extent was 61.22 Acres, as it can be seen from the extent of land, in each survey number namely, S.Nos.451, 458, 456, 457 and 455. Out of this total extent, the undivided extent purchased by the first defendant is 29.60 acres and the undivided total extent purchased by the second defendant is 30.61 acres. In all, the defendants 1 and 2 collectively purchased an undivided extent of 60.21 acres, out of total extent of 61.22 acres. From this, the exclusive right that was conveyed in favour of the second defendant under Ex.B2 can be accommodated and hence, this Court also finds that the document Ex.B.2 confer title on the second defendant and the exclusive right for an extent of 40 cents in S.No.451 apart from the undivided extent of 30.61 acres. Hence, the plaintiff cannot dispute the title of the second defendant as per Ex.B2.
22.It is also necessary to point out that the document Ex.B2 was exhibited on the same day, on which the first defendant acquired the property. Hence, this Court finds that the document was simultaneously executed.
23.For all the above reasons, this Court set aside the Judgment and Decree of the trial court in O.S.No.81 of 1986 dated 02.12.1991 by allowing this appeal. However, there shall be a decree for partition in favour of the plaintiff in respect of plaint 'A' schedule property subject to exclusive right of the appellants/second defendant to an extent of 40 cents on the norther side of property, out of total extent of 14.22 acres in S.No.451. The suit for declaration and for consequential injunction in respect of suit 'B' schedule property is dismissed. There is no order as to costs.
To The Subordinate Judge, Pudukkottai..