R BALAKRISHNAN AND ORS Vs. AMIRTHALAKSHMI AND ORS

JUDGEMENT

(1.) The appellants herein, as plaintiffs, filed a suit in O.S. No.170 of 2005, on the file of the II Additional District Munsif Court, Salem, as against the respondents herein/defendants, for the relief of declaration of title in respect of the suit property described in the plaint and to direct the defendants to hand over possession of the suit property to the plaintiffs. The case of the plaintiffs before the trial court was that the property originally belonged to Veerappa Gounder from whom, it was purchased by his wife Chinnammal, who later on sold the property to Venkatachala Chettiar. Again, by virtue of sale deed dated 14.09.1946, Veerappa Gounder purchased the said property and, on 28.08.1955, he orally divided the property among his 4 sons viz., Kandasamy, Nagappan, Arumugam and the 2nd plaintiff, and such arrangement was reduced to writing. On 10.04.2002, the 2nd plaintiff/Ranganathan sold his share/suit property to his son, the first plaintiff. It is specifically pleaded that, while so, the 2nd defendant fraudulently created a sale deed in respect of the suit property in the name of his daughter/1st defendant and also attempted to trespass into the property. The documents of title created by the defendants are related to persons who have no title at all to the suit property and as such, the defendants cannot claim any right over the suit property. Since the 2nd defendant committed trespass and made his mother to reside in the suit property, the plaintiff filed the suit before the trial court for the relief as stated above.

(2.) The defendants resisted the suit by filing a written statement and the main contention of the defendants was that the suit is hit by the principles of res judicata in view of the judgment and decree passed in O.S. No.448 of 1998 by the I Additional District Munsif, Salem and in A.S. No.177 of 2000 which are previous litigations in respect of the same property filed by Dhanapackiam who is none else than the mother of the 1st plaintiff and the wife of the 2nd plaintiff. Further, the suit is bad for non-joinder of parties because the said Dhanapackiam was purposely omitted to be added as one of the plaintiffs with a clever idea to get over the consequences of res judicata. It is stated that the plaintiffs were never in possession and enjoyment of the suit property at any point of time in any capacity. After the demise of one Irusayee Ammal, who is the original owner of the suit property, the vendors of the defendants were in possession and enjoyment of the suit property continuously without any interruption by paying all necessary tax to the Government and ultimately, they perfected title to the suit property by adverse possession. In fact, the sale deed dated 10.04.2002 entered into between the plaintiffs/father & son is a self-serving document created only to grab the suit property. The previous suit in O.S. No.448 of 1998 filed by Dhanapackiam was dismissed and the appeal filed in A.S. No.177 of 2000 was also dismissed and subsequently, not challenged by way of Second Appeal. Since the plaintiffs are guilty of suppression of these vital facts, the suit should be dismissed in limini.

(3.) The learned II Additional District Munsif, Salem, after considering the case of both sides in the light of the oral and documentary evidence, ultimately dismissed the suit by Judgment and decree dated 19.12.2005, holding that the principles of res judicata squarely apply to the suit. The appeal filed in A.S. No.38 of 2006 came to be dismissed by judgment and decree passed by the Additional Sub Judge, Salem, on 30.06.2006; hence, the present Appeal against the concurrent findings of the courts below.