AANAIMUTHU THEVAR Vs. ALAGAMMAL

JUDGEMENT

(1.) In these two appeals arising out of the impugned common judgment passed by the High Court of Madras in Second Appeal, the neat question involved is one of res judicata. The trial Court in its common judgment passed in cross-suits jointly tried came to the conclusion that the judgment in former suit OS No. 843/74 between the predecessor-in-title of the appellant and the respondents cannot operate as res judicata to bar the present suit claiming title to the suit property by the appellant. The High Court by the impugned common judgment in Second Appeal has reversed the judgment of the two Courts below and held that the judgment in former suit OS No. 843/74 decided on 28-2-1976 operates as res judicata under Section 11 of the Code of Civil Procedure. Consequently, the suit filed by the appellant has been dismissed and the cross-suit filed by the respondent has been decreed.

(2.) The facts necessary for deciding the issue of res judicata are as under :- The property involved in the two cross-suits is house door No. 206 in Harvaipatt township in Madurai, South Taluk. The house was allotted by Madurai Mills Co-operative Housing Society to mother of Muthuswami Naidu (the husband of respondent No.1 and father of respondents 3 to 7). After the death of mother, the formal doument of conveyance by the Housing Society came to be issued in favour of Muthu-swami Naidu on 15-3-1975. Muthuswami Naidyu executed a mortgage deed on 3-12-1974 for raising a loan of Rupees three thousand from one Chhinnaswamy who was co-plaintiff with him in the former suit OS No. 843 of 1974.

(3.) Muthuswami Naidu as the mortgagor under mortgage deed dated 3-12-1974 and Chinnaswamy as the mortgagee jointly filed Civil Suit as OS No. 843/74 in the Court of District Munsiff, Thirumangalam against respondent-Alagammal (the wife of Muthuswami respondent No.1 herein). The mortgagor and mortgagee filed suit simpliciter for seeking permanent injunction to restrain the respondent-wife of Muthuswami from interfering with the possession of the suit house on the ground that it was owned and possessed by them.