ARULANANDAM VETHAKANNU NADAR Vs. BHAGAVATHI PILLAI THANKACHI

JUDGEMENT

(1.) APPELLANTS in App. No. 684 of 1963 are defendants 40 to 45 in O. S. 64 of 1954 on the file of the Subordinate Judge's Court, Padmanabhapuram. appellant in App. No. 693 of 1963 is the 24th defendant in the same suit. These appeals have been preferred against the final decree and order in I. A. 134 of 1963 in O. S. No. 64 of 1954, on the file of the Subordinate Judge's Court, Padmanabhapuram.

(2.) THE only contention urged by the appellants in App. No. 684 of 1963 is that the suit is barred by res judicata in respect of the claim made against them. The plaintiffs in O. S. 64 of 1954, on the file of the lower court, filed the suit for declaration of their title to the suit properties and for recovery of possession of the same after setting aside certain alienations. The appellants in App. No. 684 of 1963 on the file of the lower court are interested only in plaint items 53 to 57. These items of properties belonged to one Chemmanthitta Tarwad and the members of that Tarwad mortgaged these properties to the father of the 40th defendant under the original of Ex. XVII dated 29-9-1059, M. E. The father of the 41st defendant and the father of the defendants 42 to 45 were the brothers of the 40th defendant. The trial court upheld the plea of defendants 40 to 45 that the suit against them was barred by limitation. But on appeal preferred by the plaintiffs to this court, it was held that the sub-mortgage Ex. F executed by the mortgagee under Ex. XVIII saved the plaintiffs' claim from the bar of limitation. In fact, the 40th defendant examined as D. W. 8 in the suit, gave evidence that his father executed the sub-mortgage G. F. with regard to some of the properties covered by the mortgage Ex. XVIII and this court relied on the said evidence. This court passed a preliminary decree for redemption of plaint Items 53 to 57 covered by Ex. XVIII, but made it subject to the other defences that might be put forward by defendants 40 to 45.

(3.) PLEA of res judicata is based on the following facts. The third defendant Ulakan pillai filed O. S. No. 454 of 1123 M. E. on the file of the District Munsif Court, padmanabhapuram, against defendants 40 to 45 in this suit for redemption of the mortgage in respect of the present suit Items 53 to 57. But he was unsuccessful both in the trial court, as well as in his appeal A. S. No. 656 of 1951 on the file of the Sub-Court, Padmanabhapuram. Ulakan Pillai died during the pendency of the appeal A. S. No. 656 of 1951, on the file of the Subordinate Judge's Court of padmanabhapuram and the present plaintiffs were brought on record as his legal representatives. Though the present plaintiffs preferred a second appeal to this court, they withdrew the same. The lower court has held that the title of the plaintiffs in the present suit is not based on the title of Ulakan Pillai, who filed the suit O. S. No. 454 of 1123 M. E. on the file of the District Munsif's Court, padmanabhapuram, and hence the decision in A. S. No. 656 of 1951 on the file of the sub-Court Padmanabhapuram, cannot operate as res judicata.