NADAR URAVINMURAI Vs. PAULRAJ

JUDGEMENT

(1.) The first defendant in O.S.No.50 of 2004, which was instituted for recovery of possession of the suit property and for mesne profits, is the appellant in both appeals. The trial court granted the plaintiff a decree for recovery of property but not his prayer for mesne profits. Aggrieved by the said decree, the first defendant preferred A.S.No.46 of 2021 whereas the plaintiffs filed their cross objection for denying them the mesne profits. The first appellate court dismissed the appeal but allowed the cross objection. Parties would be referred to by their rank in the trial court.

(2.) 1 The facts are:

(3.) 1 The suit went to trial. The first of the five issues framed by the trial Court is, whether the judgement in O.S.No.319 of 1987 bind the defendants in the present suit? In plainer terms it would mean if the finding as to the genuineness of Ext.B-1 as found in O.S.No.319 of 1987 will operate as res judicata. Decreeing the suit partially, the trial court has held that the judgement in O.S.No.319 of 1987 will not constitute res judicata and proceeded to hold that even though it does not constitute res judicata, yet it will bind the defendants under Sec.13 of the Evidence Act, and directed the defendants to deliver vacant possession of the suit property. As regards claim of mesne profits, the suit was dismissed. 3.2 Aggrieved by the said decree, the defendants preferred A.S.No.46 of 2012. On their part the plaintiffs had preferred their cross objection as concerning the dismissal of their claim for mesne profits. And, the first appellate court has raised two points each for deciding the appeal and the cross objection. And, not one is framed on how the trial court's finding that the judgement in O.S.No. 319 of 1987 will bind the defendants dehors the rule of res judicata. The principal points it raised are: (a) whether a suit for recovery of possession can be sustained without a prayer for declaration of title? And, (b) whether the suit was barred by limitation and whether the defendants have prescribed title by adverse possession. But in dealing with the first question, irrespective of how it was framed, the first appellate court has trekked along the same route through which the trial court had traveled. Ultimately, the first appellate court dismissed the appeal and allowed the cross objection and held that the quantification of mesne profits could be made under Order XX Rule 20 CPC. These decrees are now under challenge.